Schroedeb v. Turner

• Decision Date: 15 March 1888
• Citation: 68 Md. 506,13 A. 331
• Parties: SCHROEDEB v. TURNER.
• Court: Maryland Court of Appeals

13 A. 331

68 Md. 506

SCHROEDEB

v. TURNER.

Court of Appeals of Maryland.

March 15, 1888.

Appeal from Baltimore city court.

This is an action brought by Joseph Schroeder, trading as Joseph Schroeder & Co., against Joseph Turner, garnishee of Joseph E. Herbert and Ella Herbert. The writ of garnishment was sued out on the ground that the principal defendants were not residents of the state. On the hearing, the garnishee defendant moved to quash the proceedings, which was granted, and the plaintiff appealed.

W. H. Cowan, for appellant. Robert H. Smith, for appellee.

ALVEY, C. J. It does not appear upon what ground the court below quashed the attachment; but from the evidence in the record it is made quite clear that there was in fact no partnership existing, at the date of the notes sued on, between Joseph E. Herbert and John Dohme, and that the plaintiff did not deal with Herbert as representing a partnership; and therefore it could not have been upon the ground that Dohme was not joined as a party to the action that the attachment was quashed.

The notes sued upon were dated the 20th of November, 1884, and the 16th of December, 1884, payable four and six months after date, signed by Joseph E. Herbert as Herbert & Co., and which notes were indorsed on the back by and with the name simply of Mrs. Ella Herbert; she being the wife of Joseph E. Herbert, the maker of the notes. It is conceded that at the time the notes were made, and before they were delivered to the payee, they were indorsed by Mrs. Herbert; and therefore she is to be treated as a joint maker of the notes, within the principle of Ives v. Bosley, 35 Md. 262.

It is contended, however, that because it is alleged in the affidavit for the attachment, and in the declaration filed, that Joseph E. Herbert and Ella his wife were indebted to the plaintiff, and as evidence of such indebtedness the plaintiff has exhibited the promisory notes, signed "HERBERT & Co.," therefore there is a fatal variance between the averment of indebtedness, as set out in the affidavit and declaration, and the evidence of the indebtedness exhibited; namely, the notes signed "HERBERT & Co.," with the indorsement of the name of the wife on the back. But we do not think that this objection can be sustained, upon any sound or substantial principle. In the absence of statutory prohibition, any individual may do business under the name and style of a firm; but, when he is sued upon a note signed by such trade name or...