A.E. Sutton & Co. v. Coast Trading Co.

• Decision Date: 29 June 1908
• Citation: 96 P. 428,49 Wash. 694
• Parties: A. E. SUTTON & CO. v. COAST TRADING CO.
• Court: Washington Supreme Court

96 P. 428

49 Wash. 694

A. E. SUTTON & CO. v. COAST TRADING CO.

Supreme Court of Washington

June 29, 1908

Appeal from Superior Court, Pierce County; W. O. Chapman, Judge.

Action by A. E. Sutton & Co. against the Coast Trading Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Charles Bedford, for appellant.

T. L. Stiles, for respondents.

HADLEY C.J.

This is an action to recover damages resulting from an alleged breach of contract to deliver 250 tons of oats; the damages being fixed in the complaint at $1,750. The plaintiffs brought the suit as 'A. E. Sutton and R. S. Tracy, copartners, under the firm name of A. E. Sutton & Co.,' and they allege that the agreement of the defendant to deliver the oats was made with the said copartnership on the 5th day of August 1907. The answer alleges that the firm name set out in the complaint does not contain the names of all the persons interested therein, and that when the matters set forth in the complaint occurred the plaintiffs were not authorized to do business in the state of Washington, for the reason that they had neglected to file in the office of the clerk of the county a certificate showing the true names of all the partners, as provided by statute; that no certificate was filed prior to the 11th day of October, 1907; and that by reason of the failure to file such certificate prior to the making of the agreement the contract became invalid, and the courts have not jurisdiction to enforce it. This defense was overruled by the court, and, after a trial by jury, a verdict was returned for the plaintiffs in the sum of $1,000. Judgment was entered for that sum, and the defendant has appealed.

The only point raised on the appeal is that the court erred in holding that it had jurisdiction to enforce the contract. It is contended that respondents had not complied with the statute as found in Sess. Laws 1907, pp. 288-290, and that the contract was therefore void. For convenience of reference we here set forth in full sections 1, 2, and 5 of the act of 1907:

'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 therein, 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. Such certificate shall be executed and acknowledged by the party or parties conducting, or intending to conduct, said business, or having an interest therein, before an officer authorized to take acknowledgment of deeds.

'Sec. 2. Any person or persons now conducting any business under such assumed name, or under any designation, name or style other than the true and real name or names of all of the parties having an interest therein, shall file a certificate as provided for in section one hereof within thirty days after this act shall take effect, and persons hereafter conducting, or intending to conduct, any business, as set forth in section one above, shall, before commencing business, file such certificate in the manner hereinbefore prescribed.'

'Sec. 5. No person or persons carrying on, conducting or transacting business as aforesaid, or having an interest therein, shall hereafter be entitled to maintain any suit in any of the courts of this state without alleging and proving that such person or persons have filed a certificate as provided for in section one hereof, and failure to file such certificate shall be prima facie evidence of fraud in securing credit.'

Appellant contends that the effect of the statute is to make unlawful any contract entered into by a partnership designated by other than the real names of the persons interested therein if said contract is made before filing the certificate mentioned in section 1. It will be observed that the section does not in terms declare that such contracts shall be unlawful or void. The title of the act is as follows: 'An act providing that when any business, other than a corporation or a limited partnership, is conducted under an assumed name, a certificate showing the real parties in interest shall be filed with the county clerk, and fixing a penalty.' It will be seen that when the title was drawn it was the evident intention to provide a penalty for violating the terms of the act, but no penal provision is found in the body thereof. Section 5 prevents the maintenance of a suit by such a partnership without the allegation and proof that a certificate has been filed, as provided by section 1. The trial court held that the filing of the certificate before the beginning of the suit, as was done in this case, was a compliance with section 5, and entitled respondents to maintain the suit. Section 5 says the certificate shall be filed as provided for in section 1. Reference to section 1 shows only the substance of what the certificate shall contain. No time limit is mentioned in that section for the filing of the certificate. It is true section 2 does provide that partnerships existing when the law took effect should file certificates within 30 days thereafter, and that others should file before commencing business; but no reference is made to the terms of that section in section 5. Ordinarily, statutes of this character provide for a penalty, or in express terms declare that a violation of them shall render contracts unlawful and void. This statute does neither. The courts endeavor to discover the real intent of the Legislature;...