Uhlmann v. Kin Daw

• Decision Date: 09 November 1920
• Parties: UHLMANN ET AL. v. KIN DAW.
• Court: Oregon Supreme Court

193 P. 435

97 Or. 681

UHLMANN ET AL. v. KIN DAW.

Supreme Court of Oregon

November 9, 1920

Department 1.

Appeal from Circuit Court, Marion County; George G. Bingham, Judge.

Suit by William Uhlmann and others, copartners, under the firm name and style of S. & F. Uhlmann, against Kin Daw. From decree for plaintiffs, defendant appeals. Affirmed.

This is a suit to foreclose a mortgage on a leasehold estate and a crop of hops. William Uhlmann, William J. Wannamaker Ferdinand Goebel, and J. W. Kaufmann are partners doing business under the firm name of S. & F. Uhlmann. The partners reside in the city of New York, and their principal place of business is in that city, although the firm has for a long time transacted business in Oregon. George H. Benedict, who resides in Portland, Or., and who maintains an office there has been acting as agent for the partnership since 1907, and he acted as such agent and was the sole representative of the firm in all the business transacted between Kin Daw and the partnership.

Kin Daw, a Chinaman, was the lessee of a hop farm located in Marion county. His lease covered a period of several years. Beginning with 1914, the partnership advanced moneys to Kin Daw, and furnished him with supplies from time to time for use on the hop farm. On March 16, 1916, Kin Daw owed the partnership $2,835. Benedict, acting as agent for the partners, was unwilling to advance additional moneys or furnish any more supplies unless the management of the hopyard was given to some satisfactory person. The parties then adjusted their differences by entering into an agreement, dated March 16, 1916, under the terms of which Kin Daw was to transfer his lease to C. W. A. Jette, as trustee for the purpose of having Jette manage the hopyard, and accordingly the lease was assigned to Jette, as trustee. The contract also provided that Jette, as trustee, and Kin Daw should sell, and the partnership should buy, for a stipulated price, 20,000 pounds of hops in each of the years 1916, 1917 and 1918, and that the buyer should advance to the sellers in each of these years specified sums of money. The 20.000 pounds contracted for constituted only a portion of the entire crop raised. By force of other terms contained in the agreement, Jette, as trustee, and Kin Daw, for the purpose of securing $2,835, the sum then due, and moneys "to be paid," transferred and mortgaged to the partners "the entire crop of hops growing or to be grown upon said lands in the years 1916, 1917, and 1918, and also all the sellers' right, title and interest in and to the said lands."

The partnership furnished moneys and each year purchased the quantity of hops as agreed upon. After making allowance for the portions of the crops purchased by the firm, a balance of $14,566.60 was found to be due the partnership on November 1 1918; and subsequently the partners commenced this suit to recover the amount due and to foreclose the mortgage. Kin Daw filed a plea in abatement and an answer. It will not be necessary to notice the answer. In the plea in abatement Kin Daw alleges that the plaintiffs are not entitled to maintain this suit, for the reason that they failed to file a certificate of their assumed business name, as required by chapter 154, Laws 1913. The suit resulted in a decree for $14,566.60, with interest, and for the foreclosure of the mortgage. Kin Daw appealed.

E. B. Seabrook, of Portland (J. C. Simmons, of Portland, on the brief), for appellant.

A. B. Winfree, of Portland (Teal, Minor & Winfree, of Portland, on the brief), for respondents.

HARRIS, J. (after stating the facts as above).

The papers which were executed on March 16, 1916, were signed and delivered in Portland, Multnomah county; while, as already stated, the hop farm is located in Marion county, and the partnership's main office is in the city of New York. A certificate of the partnership's assumed name was filed in Marion county on January 27, 1916; and on March 8, 1918, subsequent to the execution of the agreement and mortgage, but prior to the commencement of this suit, a like certificate was filed in Multnomah county. The plea in abatement filed by Kin Daw was predicated on the theory that the failure to file a certificate in Multnomah county, where the papers were executed, prior to March 16, 1916, rendered the agreement and mortgage void under the provisions of chapter 154, Laws 1913.

The statute contains six sections. Sections 3 and 4 are not material here, for the reason that one relates to the filing of a certificate when a change occurs in ownership, and the other exempts from the operation of the statute corporations, limited partnerships and such partnerships as include in their business names the true names of all the parties conducting the business or having an interest in it. The other sections are as follows:

"Section 1. True Name to be Filed when Business Under Assumed Name.--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 real and true 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 post office 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. Certificate to be Filed before Commencing Business.--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 the parties having an interest therein, shall file and cause to be recorded and indexed in a book to be kept for that purpose, a certificate, as provided for in section 1 of this act, within 30 days after this act shall take effect, and persons hereafter conducting or intending to conduct any business, as set forth in section 1, shall, before commencing business, file and record such certificate in the manner hereinbefore prescribed."

"Sec. 5. Compliance Condition Precedent to Bringing Suit.--No person or persons carrying on, conducting or transacting business as aforesaid, or having any interest therein, shall hereafter be entitled to maintain any suit or action 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 1, and failure to file such certificate shall be prima facie evidence of fraud in securing credit.

"Sec. 6. Penalty Clause.--Any person violating any of the provisions of this act, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine not exceeding $100."

Statutes are to be found in many of the states regulating the conduct of business under an assumed name. Each of these statutes which we have examined contains a section that is either identical with or substantially like section 1 of our statute. However, the expressed penalty for failure to observe the statute is not the same in all states. In some jurisdictions, as in California, Oklahoma, Colorado, Ohio, Montana, and South Dakota, for convenience referred to herein as the first group, a person or persons doing business under an assumed name cannot, in the language of the statute "maintain" or "commence nor maintain" an action upon any contracts made or transaction had in the assumed name "until" a certificate is filed or, as is sometimes required, filed and published. In some of these jurisdictions it is expressly provided by the statute that contracts made prior to the filing of the certificate may be sued upon and enforced after such filing; while in the remaining jurisdictions belonging to the first group the same result has been reached by judicial decision. In states having legislation like that of California, it is plain that it was not the intent of the lawmakers to taint the agreement or transaction so as to make it illegal and unenforceable, and that the only penalty intended is a conditional suspension rather than an absolute denial of legal remedies, even though in some of those states, as in Colorado, failure to file the certificate is declared to be a misdemeanor punishable by fine or imprisonment. Civil Code of California (Deering 1915) § 2468; Roullard v. Gray, 38 Cal.App. 79, 175 P. 479; Compiled Laws of Oklahoma 1909, §§ 5023, 5025; Baker v. Van Ness, 25 Okl. 34, 105 P. 660; Bleecher v. Miller, 40 Okl. 374, 138 P. 809; Colorado Laws 1897, p. 248, c. 65; Elgin Jewelry Co. v. Wilson, 42 Colo. 270, 93 P. 1107; Wallbrecht v. Blush. 43 Colo. 329, 95 P. 927; Bates' Annotated

Statutes of Ohio (6th Ed.) § 3170--6 (section 6); Cobble v. Farmers' Bank, 63 Ohio St. 528, 59 N.E. 221; Revised Codes of Montana 1907, §§ 5504, 5509; Reilly v. Hatheway, 46 Mont. 1, 125 P. 417; Revised Civil Code of South Dakota, §§ 1763, 1764; Heegaard v. Dakota Loan & Trust Co., 3 S. D. 569, 54 N.W. 656; Bovee v. De Jong, 22 S.D. 163, 116 N.W. 83.

There is a second group of states in which the failure to file a certificate is declared to be a misdemeanor, and the only penalty in terms prescribed for such failure is fine or...