Penton Pub., Inc. v. Markey, Docket No. 171059

• Decision Date: 15 August 1995
• Docket Number: Docket No. 171059
• Citation: 538 N.W.2d 104,212 Mich.App. 624
• Parties: PENTON PUBLISHING, INC., Plaintiff-Appellee, v. Robert A. MARKEY, an individual, d/b/a Markey & Associates, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 104

538 N.W.2d 104

212 Mich.App. 624

PENTON PUBLISHING, INC., Plaintiff-Appellee, v. Robert A. MARKEY, an individual, d/b/a Markey & Associates Defendant-Appellant.

Docket No. 171059.

Court of Appeals of Michigan.

Submitted May 9, 1995, at Grand Rapids.

Decided Aug. 15, 1995, at 9:05 a.m.

Released for Publication Oct. 10, 1995.

Muller, Muller, Richmond, Harms, Myers & Sgroi by William R. Farran, Grand Rapids, for plaintiff.

Warner, Norcross & Judd by Devin S. Schindler and Dale B. Black, Grand Rapids, for defendant.

Before SAAD, P.J., and BANDSTRA and HARRISON, ^* JJ.

PER CURIAM.

This is a collection case. Plaintiff sued Robert A. Markey personally for payments owed to it for sales made to Markey & Associates. Defendant responded that he was not personally liable to plaintiff, because plaintiff's sales actually had been to Markey & Associates, Inc., a Michigan corporation doing business as Markey & Associates. That corporation had ceased operations and had established a trust fund for the benefit of its creditors, including plaintiff. After both parties moved for summary disposition, the trial court granted summary disposition for plaintiff. We reverse.

Plaintiff argues that its understanding was that Markey & Associates was the name under which Robert A. Markey did business and that nothing in the business relationship had put it on notice that a corporation was involved. Plaintiff further argues that it had no duty to discover that the assumed name belonged to a corporation and not to defendant Robert A. Markey. Instead, plaintiff argues that Robert A. Markey, acting as an agent, was required to disclose the existence and identity of his principal, Markey & Associates, Inc., in order to avoid personal liability.

Defendant argues that any duty to disclose the existence of the corporation was satisfied because the corporation had filed an assumed-name certificate pursuant to M.C.L. § 450.1217; M.S.A. § 21.200(217), which provides in relevant part:

(1) A domestic or foreign corporation may transact its business under any assumed name or names other than its corporate name ... by filing a certificate stating the true name of the corporation and the assumed name under which the business is to be transacted.

Under the general agency precedents that plaintiff relies upon, a principal is considered undisclosed unless a party transacting with the principal's agent has notice that the agent is acting for the principal and notice of the principal's identity. Dodge v. Blood, 299 Mich. 364, 370, 300 N.W. 121 (1941). An agent contracting for an undisclosed principal is personally liable for contractual obligations. Detroit Pure Milk Co. v. Patterson, 138 Mich.App. 475, 478, 360 N.W.2d 221 (1984). However, none of the Michigan precedents plaintiff relies upon involved a corporation that properly had filed an assumed-named certificate as authorized by the statute. See Stevens v. Graf, 358 Mich. 122, 99 N.W.2d 356 (1959); Detroit Pure Milk Co. v. Farnsworth, 114 Mich.App. 447, 319 N.W.2d 557 (1981); Baranowski v. Strating, 72 Mich.App. 548, 250 N.W.2d 744 (1976). On the other hand, defendant did not cite, and we are unaware of, any Michigan precedents holding that an assumed-name filing provides protection to the agent of an otherwise undisclosed principal.

Some guidance is found in Bankers Trust Co. v. Bradfield, 324 Mich. 116, 123, 36 N.W.2d 870 (1949), where the Supreme Court considered an assumed-name statute other than that at issue here and found its purpose to be "to inform the public ... and thereby ... prevent imposition and fraud." Accord Maurer v. Greening Nursery Co., 199 Mich. 522, 524, 165 N.W. 861 (1917). Courts from other jurisdictions have found that assumed-named statutes serve a similar public notice function. Portland Savings & Loan Ass'n v. Bernstein, 716 S.W.2d 532, 537-538 (Tex.App.1985); Reed v. Pelley, 112 Misc.2d 382, 447 N.Y.S.2d 98 (1982); Sheraton Corp. of America v. Kingsford Packing Co., Inc., 162 Ind.App. 470, 480, 319 N.E.2d 852 (1974); Berg Metals Corp. v. Wilson, 170 Cal.App.2d 559, 339 P.2d 869 (1959); Ulick v. Vibration Specialty Co., 348 Pa. 241, 35 A.2d 332 (1944).

Consistent with these...