Merrill v. Caro Inv. Co.

• Decision Date: 14 October 1912
• Citation: 127 P. 122,70 Wash. 482
• Parties: MERRILL v. CARO INV. CO.
• Court: Washington Supreme Court

127 P. 122

70 Wash. 482

MERRILL v. CARO INV. CO.

Supreme Court of Washington

October 14, 1912

Department 1. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by George W. Merrill against the Caro Investment Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Davis & Rhodes, of Spokane, for appellant.

W. J Matthews, of Spokane, for respondent.

CROW J.

This action was commenced by George W. Merrill against Caro Investment Company, a corporation, to recover for authomobile hire. From a verdict and judgment in plaintiff's favor the defendant has appealed.

Respondent George W. Merrill, alleged that at all times in the complaint mentioned he was engaged in the business of keeping automobiles for hire in the city of Spokane, under the firm name and style of George W. Merrill Automobile Company, but he did not allege or prove that he had filed a certificate in the office of the clerk of Spokane county, setting forth the designated name or style under which his business was conducted, with the true name or names of the parties conducting the same or having an interest therein.

By demurrer and answer, appellant questioned respondent's capacity to sue, and now contends that this action should have bee dismissed, for the reason that respondent failed to file the certificate above mentioned; that the filing of such a certificate is required by section 1, c. 145, Session Laws 1907, p. 288 (section 8369, Rem. & Bal. Code), and that, under section 5 of the act (section 8373, Rem. & Bal. Code), respondent has no capacity to sue. Sections 1 and 4 of the act (sections 8369, 8372, Rem. Bal. Code), in so far as material to the present inquiry, read as follows:

'Section 1. That no person or persons shall hereafter carry on, conduct or transact business in this state under any assumed name or under any designation, name or style, corporate or otherwise, other than the true and real name or names of the person or persons conducting such business or having an interest herein, unless such person, or all of such persons, conducting said business, or having an interest therein, shall file a certificate in the office of the county clerk of the county or counties in which said business is to be conducted, which certificate shall set forth the designation, name or style under which said business is to be conducted, and the true and real name or names of the party or parties conducting, or intending to conduct the same, or having an interest therein, together with the postoffice address or addresses of said person or persons. * * *

'Sec. 4. * * * Nor shall this act be deemed or construed to prevent the lawful use of a partnership designation, name or style: Provided, that such partnership designation, name or style shall include the true and real name or names of all of the parties conducting such business or having an interest therein. * * *'

In Sutton & Co. v. Coast Trading Co., 49 Wash. 694, 96 P. 428, this court held that, inasmuch as this statute affects the common-law right to contract, implications against the common-law privilege to contract should not be favored. In Malfa v. Crisp, 52 Wash. 509, 100 P 1012, the statute was liberally construed, and we held that the filing of the certificate, after the commencement of the action but prior to the trial, was sufficient. In Bowman v. Harrison, 59 Wash. 56, 109 P. 192, where the record shows that the action was commenced by William Bowman and Oscar Collins, copartners under the firm name of Bowman & Collins, the plaintiffs' right to sue was sustained; and in ...