McGillivray v. Columbia Salmon Co.

• Citation: 177 P. 660,104 Wash. 623
• Decision Date: 06 January 1919
• Docket Number: 14890.
• Court: Washington Supreme Court
• Parties: McGILLIVRAY v. COLUMBIA SALMON CO.

177 P. 660

104 Wash. 623

McGILLIVRAY v. COLUMBIA SALMON CO.

No. 14890.

Supreme Court of Washington

January 6, 1919

Department 2.

Appeal from Superior Court, Kitsap County; Walter M. French, Judge.

Action by J. A. McGillivray, doing business under the trade-name of Bremerton Iron Works, against the Columbia Salmon Company and another. Judgment for plaintiff, and the named defendant appeals. Affirmed.

Jones & Riddell, of Seattle, for appellant.

F. W Moore, of Bremerton, for respondent.

HOLCOMB J.

The facts in this case, found by the trial court and supported by competent evidence, may be briefly stated: One Loveland doing business under the name and style of the Loveland Boat Works at Bremerton, entered into a written contract to build certain boats and some tenders for the Columbia Salmon Company, a corporation, and the Alaska Pacific Herring Company. The Loveland Company proceeded with the construction of the boats for both companies until the Port Blakely Mill Company, on account of the financial straits of the Loveland Company, became anxious about payment for the lumber it was furnishing for the boats. In a discussion of this matter at the Columbia Salmon Company's office on May 12, 1917, it was agreed that the latter would protect the Port Blakely Mill Company upon its lumber bills in building the appellant's boats, and also a certain other account. After these accounts had been arranged, Loveland stated that he had not paid his last pay roll; that there was a margin of about $1,400 in the contracts, and the unpaid pay roll was about $500. The appellant gave Loveland a check for $750 to pay the pay roll for the preceding week. It was also agreed that from that time on the Alaska Pacific Herring Company and the appellant would each pay the amount of its pay rolls. From about May 12, 1917, appellant took over the plant so far as the construction of its boats was concerned paid the pay rolls, paid certain debts for material, paid Loveland wages instead of completing the construction contract with him, and, through its superintendent, assured respondent and one Robertson, a creditor for material, that their bills would be paid. Robertson and McGillivray, being informed that appellant agreed to pay all debts, continued to perform labor and furnish material for the boats. Robertson assigned his claim to McGillivray for collection. Respondent was doing business under the business name of 'Bremerton Iron Works, J. A. McGillivray, Proprietor,' thereby using both an assumed name and his own true and full name. In his complaint respondent failed to allege that he had complied with the law requiring the filing of a certificate of assumed business name with the county clerk. Appellant demurred to the complaint for the reason, among others, that the complaint shows upon its face that plaintiff has no legal capacity to sue. Thereafter respondent filed a certificate of assumed business name and pleaded the same by supplemental complaint. The demurrer was overruled after the filing of the supplemental complaint.

Rem. Code, §§ 8369-8373, provides that, before a person or persons conducting business under an assumed name may maintain a suit in any court of this state, it must be alleged and proved that such person or persons has or have filed a certificate of the true name or names of the persons conducting such business. In such case, proof of filing the certificate is made as much a prerequisite and a material fact in maintaining the suit as proof of any other necessary fact.

In the case of Sutton & Co. v. Coast Trading Co., 49 Wash 694, 96 P. 428, we held that a contract made by a partnership doing business under an assumed name was not invalidated by the statute in question. In Malfa v. Crisp, 52 Wash. 509, 100 P. 1012, we held that, where copartners did business under an assumed name other than the true name of the firm members, without filing the certificate required by the above statutes designating their true names, there is such a substantial compliance with the statute as to prevent a dismissal of the action commenced before the filing of the certificate, where long before trial they filed the certificate and...