McCulley v. Blanchard
| Decision Date | 06 June 1933 |
| Docket Number | 7508. |
| Citation | 169 S.E. 746,113 W.Va. 770 |
| Parties | McCULLEY v. BLANCHARD et al. |
| Court | West Virginia Supreme Court |
Submitted May 9, 1933.
Syllabus by the Court.
Person doing business under fictitious or assumed name is "trader" within statute rendering goods used in business subject to claims of lien creditors, unless ownership by another is disclosed, notwithstanding trader does not adopt statutory firm name, and notwithstanding purchasers do not come to his place of business to transact their business (Code 1923, c. 100, § 13).
Person conducting business under fictitious or assumed name without complying with statute giving right to use such name, is conducting business in "own name"; hence goods of another in his possession are subject to attachment when no notice is published disclosing owner's name (Code 1923 c. 100, §§ 13, 17).
1. A person doing business as a trader in a fictitious or assumed name without adopting one of the quoted firm name endings set out in section 13, chapter 100, Code of 1923, is nevertheless within the purview of that section.
2. A person doing business in a fictitious or assumed name without having complied with the provisions of section 17, chapter 100, Code of 1923, is, in legal contemplation, doing business in his own name.
Error to Circuit Court, Ohio County.
Action by B. E. McCulley against Benjamin Blanchard, alias George Lang, trading and doing business as the La France Service Company, in which the W. T. McCullough Electric Company intervened. To review an adverse judgment, the intervener brings error.
Affirmed.
Nesbitt & Nesbitt and John D. Phillips, all of Wheeling, for plaintiff in error.
Erman L. Harrison and A. C. Schiffler, both of Wheeling, for defendant in error McCulley.
Attachment was sworn out in an action in assumpsit brought by B. E McCulley against Benjamin Blanchard, alias George Lang trading and doing business as La France Service Company, in the circuit court of Ohio county. It was levied on the stock of goods of Blanchard, including a quantity of Westinghouse electric light bulbs owned by W. T. McCullough Electric Company. After the levy of the attachment, the owner of the bulbs filed an intervening petition asking that the property be delivered to it. This was resisted by the attaching creditor on the theory that there had been no compliance on the part of Blanchard with section 13, chapter 100, Code 1923, under which the dispute arose. The attaching creditor asserts that Blanchard was a trader within the meaning of that section, and that he neither published nor posted at his place of business the notice required to protect the ownership of a person shipping goods to him on consignment. The electric company, owner of the goods replies (1) that Blanchard was not a trader within the meaning of that section because he kept no general store or such place of business as is therein contemplated; and (2) that, even if held to be a trader, he was not doing business as such trader with the addition of the words "factor," "agent," "& Company," or "& Co.," nor was he doing business in his own name, but in the name of La France Service.
There is no question but that the goods were owned by the intervening petitioner. There is no question but that Blanchard failed to comply with the provisions of section 13, chapter 100, Code of 1923, in that he did not publish and post at his place of business the notices therein required. If he was a trader within the meaning of that section, then the goods in question, along with all of his other stock of goods, are liable to respond to the claims of his lien creditors, no matter to whom they belong.
The contention is made that, because customers or purchasers did not come to Blanchard's place of business (he was engaged in buying and selling small articles in the nature of novelties) to make their purchases and to transact their business, he was not a trader within the meaning of the section. We do not believe that this contention carries merit. In the first place, it is not customers or purchasers who are to be protected by the statute. It is those who are likely to extend credit to the person doing business. The fact that sales are conducted, not on the premises, but by representatives who go into the field, would not appear to affect materially the question involved. The stock of goods was maintained at Blanchard's place of business. That stock he sold, and he replenished it by purchases from time to time. It was his capital devoted to the transaction of his business. It was upon the strength of its apparent value that credit was extended to him. It is our opinion that Blanchard's place of business was a "house wherein such business was transacted," and that in that respect he was "a trader" within the meaning of the statute.
In determining whether Blanchard was a trader within the meaning of the section, the only remaining thing to be considered is whether or not a person, to be a trader, must be doing business in his own name or in some fictitious name, using the identical firm name endings quoted in the statute, or, on the other hand, whether the obvious purpose and intention of the statute is to be carried out, even to the extent of exceeding its technical verbiage, although it is in derogation of the common law.
It is urged that this statute should be strictly construed because of the fact that it is in derogation of the common law, and that that strict construction should take the form of holding that the...
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