Singmaster v. Hall

• Decision Date: 29 August 1917
• Docket Number: 14105.
• Citation: 98 Wash. 134,167 P. 136
• Court: Washington Supreme Court
• Parties: SINGMASTER et al. v. HALL et al.

167 P. 136

98 Wash. 134

SINGMASTER et al. v. HALL et al.

No. 14105.

Supreme Court of Washington

August 29, 1917

Department 2. Appeal from Superior Court, Okanogan County; E. K Pendergast, Judge.

Action by C. F. Singmaster and others, copartners doing business under the firm name and style of Singmaster & Sons, against H. M. Hall and others. From a judgment for plaintiffs defendants appeal. Affirmed.

W. H Patterson, of Riverside, and Chas. A. Johnson, of Okanogan, for appellants.

P. D. Smith and W. C. Gresham, both of Okanogan, for respondents.

MOUNT J.

This action was brought to recover upon three promissory notes for $1,083 each, with interest and costs. These notes were dated April 7, 1907, payable respectively in one, two, and three years after date. The complaint is in the ordinary form, alleging that the notes were past due, nonpayment, and praying for the full amount of the notes with interest, attorney's fees, and costs. In answer to the complaint, the defendants admitted the execution and delivery of the notes. An affirmative defense was pleaded to the effect that the notes were given as the consideration for the sale of a certain stallion by the plaintiffs to the defendants; that this stallion was offered for sale to the defendants by one Gray, acting as agent for the plaintiffs; that the stallion was exhibited to the defendants by Gray, who represented the horse to be a pure-bred Percheron imported from France and registered in that country as a pure-bred horse under the name of Eloi, with the number 44458; that the defendants relied upon the representations so made; that these representations were false and were known by Gray to be false; that the horse exhibited and delivered to the defendants was an entirely different animal and was not a purebred Percheron, but was a grade horse registered in a disreputable society under the name of Julian, with a different number; that the horse was afflicted with a disease which made him unfit for the purposes for which he was purchased; that as soon as the defendants discovered that the animal was misrepresented and that they had been defrauded, they disaffirmed the sale, notified the plaintiffs that they would not be bound thereby, and tendered the stallion back to the plaintiffs. The reply denied the affirmative matter of the answer. These issues were tried to the court, without a jury. Findings were made in favor of the plaintiffs; the trial court concluded that the plaintiffs were entitled to recover upon the notes; that, by reason of the fact that a horse of a different name and registry number was delivered, the defendants had been damaged thereby in the sum of $1,200, which sum was deducted from the amount due upon the notes and a judgment entered for the balance. The defendants have appealed.

It is argued by the appellants that the respondents were not entitled to maintain the action because they were a partnership, doing business in this state, and that a certificate of partnership was not filed as required by law. A certificate was filed before the trial which complied with the statute. If we concede, however, that the certificate was not filed in time, it does not appear from the record that the respondents were doing business in this state at the time the action was brought. The record shows that the respondents were in business in Iowa at that time, and there is no evidence in the record that, at the time the action was brought, they were doing business in this state. The statute, at section 8369, Rem. Code, provides that no person or persons shall conduct or transact business in the state under an assumed name unless such person or persons 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 name under which said business is to be conducted, and the true or real name or names of the party or parties conducting the same. This court has held in a number of cases that the mere bringing of an action does not constitute doing business. Lilly-Brackett Co. v. Sonnemann, 50 Wash. 487, 97 P. 505; Smith & Co. v. Dickinson, 81 Wash. 465, 142 P. 1133.

It is next argued that the court erred in refusing an offer of proof to the effect that a Mr. Gray, who sold the horse to the appellants, represented himself as the agent of the respondents, and, at that time, represented the horse which was delivered to the appellants as being a pure-bred Percheron horse named Eloi, when he knew that the horse was not a thoroughbred Percheron horse, but was another horse named Julian, and that he fraudulently made these representations for the purpose of deceiving the appellants. The court, we think, properly excluded this evidence for two reasons: First. It was not proved that Mr....