Keller v. Lonsdale

• Citation: 339 P.2d 112,216 Or. 339
• Parties: W. G. KELLER, Respondent, v. William P. LONSDALE and Marion Lonsdale, Appellants, and Max Fleming and K. Reuben Nyberg, Cross-Defendants.
• Decision Date: 13 May 1959
• Court: Supreme Court of Oregon

Page 112

339 P.2d 112

216 Or. 339

W. G. KELLER, Respondent, v. William P. LONSDALE and Marion Lonsdale, Appellants, and Max Fleming and K. Reuben Nyberg, Cross-Defendants.

Supreme Court of Oregon, Department 2.

Argued and Submitted Dec. 18, 1958.

Decided May 13, 1959.

E. B. Sahlstrom, Eugene, argued the cause and filed a brief for appellants.

William M. Keller, Portland, argued the cause and filed a brief for respondent.

Before PERRY ^*, C. J., and LUSK, WARNER and SLOAN, JJ.

WARNER, Justice.

This is a suit by the plaintiff, Keller, to foreclose the interest of the defendants, Lonsdales, as purchasers, under two conditional sales contracts, executed by them in February, 1954. Keller appears herein as the assignee of Max Fleming and K. Reuben Nyberg, copartners, dba Fleming & Company, the sellers, under said contracts. Each contract was for the sale of ten coin-operated television sets and are identical in terms. The sets were installed for the Lonsdales in two different motels in Eugene where they presently remain in defendants' possession.

On motion of the defendants, Lonsdales, the copartners, Fleming and Nyberg, were made parties as cross-defendants in the Lonsdales' amended complaint.

The Lonsdales were in default in the payments required by the contracts but defend by claiming the right to rescind the contracts because of alleged false representations made to them by one Colburn, a traveling salesman employed by Fleming & Company. They also rely upon a technical defense predicated upon the failure of the Fleming Company to have filed a certificate of Assumed Trade Name in Lane county, in addition to the one previously filed in Multnomah county.

The trial court found no merit in the defendants' several defenses and entered its decree favorable to the plaintiff, Keller, with judgment for the balance due on the contracts, attorney's fees and interest, and for a judgment for any deficiency remaining after the sale of the television units under execution. From this decree, the Lonsdales appeal.

The broad issues are reflected by the following questions:

(1) Is plaintiff barred from his right of action by reason of the Fleming failure to file an assumed trade name certificate in Lane county?;

(2) Is the plaintiff precluded from equitable cognizance in the matter due to the alleged adequacy and claimed election of a legal remedy?; and

(3) Were the Lonsdales entitled to a rescission of the contracts?

The defendants' first proposition relates to what they claim was the court's error in striking from their answer the following language:

'* * * and further specifically deny that said parties, or either of them, filed any assumed business name certificate in Lane County, Oregon, and by reason thereof, allege that they were not authorized to conduct business in Lane County, Oregon, or to commence this suit in Lane County, Oregon.'

Lonsdales admit that the partners comprising Fleming & Company (Keller's assignor), filed an assumed name certificate in Multnomah county, their principal place of business, as required by ORS 648.010. ¹ But they assert that because Fleming & Company had failed to file a like certificate in Lane county, where the television sets were sold and installed, Keller's right to institute this suit is fatally impaired thereby.

The undisputed facts are that Fleming's sole place of business is in Multnomah county. It is also uncontradicted that Fleming & Company had no place of business in Lane county, and that the one transaction resulting in the two contracts sought to be foreclosed, was the sole sale or other transaction had by Fleming in Lane county during the year 1954 or for many years prior thereto.

The Lonsdales rely on that part of ORS 648.010, supra, reading: 'No person or persons shall carry on, conduct or transact business in this state' until they 'file a certificate in the office of the county clerk of the county or counties in which the business is to be conducted.'

In connection with the foregoing, they also rely on ORS 648.090 ² which provides that persons coming within the purview of ORS 648.010 shall not be 'entitled to maintain any suit or action * * * without alleging and proving that they have filed a certificate as provided for in ORS 648.010.'

We pass the question as to the propriety of raising the matter in their pleading in the manner in which the Lonsdales elected to do, and go directly to their construction of ORS 648.010.

We first remind ourselves that the privilege to do business as partners is of common-law origin and that the statute under review is in derogation of that right. Therefore, a rule of strict construction is in order when fixing the limits and boundaries of the field in which the Assumed Business Name Act operates. Uhlmann v. Kin Daw, 97 Or. 681, 692, 193 P. 435, an opinion by Mr. Justice Harris construing the act now before us. See, also, 38 Am.Jur. 603, Name, § 14.

We are of the opinion that a single or isolated transaction within a given county of the state outside the county where the partnership has its principal place of business, does not constitute the carrying on or transacting business in such other counties within the meaning of ORS 648.010, supra, so as to require the filing of a certificate in such county.

In the comparatively recent case of Bacon v. Gardner, 1951, 38 Wash.2d 299, 229 P.2d 523, at page 527, the court had occasion to construe Rem.Rev.Stat. § 9976 (an exact counterpart of ORS 648.010) and there declared that 'statutes of this character are not directed against isolated transactions, but against a continuing commercial activity.' See, also, Johnson v. Cass & Emerson, 91 Vt. 103, 99 A. 633, 634; Pratt v. York, 197 Ky. 846, 248 S.W. 492, 495; and People v. Whiting, 68 Miss. 306, 123 N.Y.S. 769, where the several courts construe assumed name statutes which are alike or substantially like our own.

We hold that the trial court did not err in striking the portion of appellants' answer referred to above.

By their second proposition, the defendants claim the court was in error in denying their motion to strike all allegations in the complaint relating to equitable relief.

They argue that in the event of a breach of a conditional sales contract, the remedies therein provided are exclusive and that the contract here makes no provision for the remedy which the seller has invoked by suit for a foreclosure. They conclude that plaintiff's only recourse is by an action at law. We think that the contention is without merit for the reasons that follow.

The chief criterion as to the character of such a contract is the intention of the parties as disclosed by the entire contract. Manley Auto Co. v. Jackson, 115 Or. 396, 399, 237 P. 982.

Turning to the contracts, we find the following pertinent terms: the agreement of the sellers to sell and the defendant purchasers to buy, thereby directly obligating the Lonsdales to pay the full purchase price, Wickwire v. Hanson, 133 Or. 85, 89, 288 P. 404; a stipulation for retention of title in the sellers, reading: 'The title to said property will be retained by the Seller and shall not pass to the Purchaser until the sums hereinbefore agreed to be paid shall have been paid in cash, and until the Purchaser shall have performed all things in this agreement on his part required to be performed.' In Manley, supra, we said: 'If the seller treats the title to the property reserved by the conditional sales contract as security for the payment of the price, he may file his bill in equity to obtain a judicial sale.' 115 Or. at page 400, 237 P. at page 983. The contract also confers a right in the sellers to accelerate payment of the entire indebtedness upon any default and an obligation on the part of the purchasers to pay any deficiency remaining after sale of the property. By the terms of the contract, the defendant purchasers had the right to possession of the property, together with a beneficial interest therein, so long as the contract was not in default. Such constitute an equitable interest. McDaniel v. Chiaramonte, 61 Or. 403, 409, 122 P. 33; Richardson v. Bouthillier, 193 Or. 354, 360, 238 P.2d 212.

The defendants point to Bottemiller v. Ball, 130 Or. 255, 264, 279 P. 542, 69 A.L.R. 951, as authority for the proposition that when a contract provides remedies in the event of breach, those remedies are 'exclusive.' A reading of Bottemiller and the cases there cited does not warrant such a sweeping and dogmatic conclusion. Moreover, we do not find that Bottemiller has ever been cited by this court to support such result.

A complete answer to this contention of defendants will be found in Wickwire v. Hanson, supra. In Wickwire, plaintiffs were the purchasers and sought to recover amounts previously paid on a conditional sales contract. The defendant seller's answer included a counterclaim in equity seeking to foreclose the interests of the purchasers. Plaintiffs in that case, as do the Lonsdales here, insisted on trying the case at law and demanded a jury, which was refused (133 Or. 88, 288 P. 404). That order was one of the issues on appeal and the appellants' contention was rejected.

In Wickwire, the contract was in many respects like the one at bar. It provided for retention of title in the seller until the full amount of the purchase price was paid and for acceleration of the entire amount upon the buyers' default (133 Or. at page 89, 288 P. 404).

The sole contractual remedy of the seller on default in the Wickwire case was a right to 'retake the possession of the said personal property at her election and without notice to the vendees, and the vendor may further declare the entire amount due under this contract due and payable at once.' 133 Or. at page 89, 288 P. at page 405. A comparable provision is found in the Lonsdale's contract, as one of several alternative remedies of the sellers, but, however, coupled with the further provision that upon such seizure the ...