208 P. 607 | Mont. | 1922
delivered the opinion of the court.
This action was instituted by Tony Canónica against Mrs. St. George to recover $450 alleged to be due as a balance on the contract price for work and labor performed and materials furnished in installing two heating plants. The action is based upon a written contract dated July 30, 1918. The complaint is in the usual form. It sets forth the contract relied upon, alleges performance by plaintiff, and that of the agreed price of $800 only the sum of $350 has been paid.
The answer consists of (a) denials, (b) a special defense, and (c) a counterclaim, (a) All of the allegations of the complaint are '^denied except the allegation that defendant had paid to plaintiff the sum of $350. (b) As a special defense it is alleged that plaintiff transacted business under a fictitious name, to-wit, “Tony’s Tin Shop,” and has not complied with the statutes of this state. The facts constituting the breach are set forth in detail, (c) As a counterclaim defendant alleges that the work and labor were to be performed and the materials were to be furnished under a contract dated July 24, 1918; that plaintiff failed to perform the agreement on his part—specifying the particulars in which he failed—and as a result defendant was put to great expense and annoyance, to her damage in the sum of $1,000. Upon motion of plaintiff the court struck out the special defense,' and a reply was then filed which traverses the allegations of the counterclaim.
At the conclusion of plaintiff’s case the court granted a motion for a nonsuit, and judgment was rendered and entered in favor of defendant for costs. Plaintiff has appealed from the judgment and from an order denying him a new trial.
The trial court struck out the special defense, evidently upon the theory that the facts pleaded therein do not constitute a defense, and then nonsuited the plaintiff because he had not proved that he had complied with the provisions
Our statutes dealing with the use of fictitious names were introduced into the Codes of 1895, and comprised sections 3280 to 3284, Civil Code. They related exclusively to partnerships. Section 3280 provided that any partnership transacting business under a fictitious name or designation not showing the names of the persons interested as partners in such business should filé with the county clerk of the county in which the principal place of business was situated, a certificate stating in full the name and place of residence of every member of the partnership, and publish such certificate once a week for four successive weeks, etc. Section 3281 provided, among other things, that persons doing business as partners without complying with the law should not maintain any action upon or on account of any contract made or transaction had in the partnership name “until they have first filed the certificate and made the publication herein required.” Section 3282 provided for a new certificate whenever there occurred any change in the personnel of the partnership. Section 3283 provided for the proper record to be kept by the county clerk, and section 3284 prescribed a rule of evidence.
In 1905 this court had before it the case of Lander v. Sheehan, 32 Mont. 25, 79 Pac. 406, and held that the statutes above had no application to a single individual doing business under a fictitious name. In 1907 (Laws 1907, Chap. 150) the legislature enacted a measure which was to be known as section 3285, Civil Code, and which applied the rules of tho preceding sections to individuals.
These six sections were carried forward into the revision of 1907 as sections 5504 to 5509, Revised Codes of 1907, and are now sections 8019-8024, Revised Codes of 1921. The section added in Í907, now section 8024, Revised Codes of 1921, reads as follows: “Every individual now transacting business
Similar statutes are in force in many states, and decided cases construing them are cited in the notes to Bolen v. Ligett, L. R. A. 1916D, 355. The object of these statutes is to prohibit persons from concealing their identity in their business transactions, under the cloat of assumed or fictitious - names or designations. If the identity is not disclosed in the name or designation employed, then it must be disclosed in the public record provided for that purpose. From the statutes themselves, and from the decided cases construing them, including our own cases, these general rules are deducible:
(1) If the name under which the business is transacted fairly discloses the true name of the individual or of each copartner, as the case may be, the statutes do not apply, and the certificate is not required; on the contrary, if the used name does not fairly disclose the true name of the individual or the true name of each partner, as the case may be, it is fictitious within the meaning of the statutes. (Guiterman v. Wishon, 21 Mont. 458, 54 Pac. 566; Vaughan v. Kujath, 44 Mont. 484, 120 Pac. 1121; and other eases cited in L. R. A. 1916D, above.)
(2) Failure to observe the mandate of the statutes does not invalidate the contracts or other transactions. It does not destroy the right of action, but operates only upon the remedy, and then only until the requirements have been met. (Croft v. Bain, 49 Mont. 484, 143 Pac. 960; McGillivray v. Columbia Salmon Co., 104 Wash. 623, 177 Pac. 660.)
(3) An allegation that plaintiff has complied with the statute is not any part of the statement of his cause of action; on the contrary, failure to comply is a matter of defense
It may be conceded at once that the name “Tony’s Tin • Shop” does not disclose the true name of the person who transacted business under that designation; but whether plaintiff had complied with the statute was a question to be determined by the court if it was raised. Since the burden was upon the defendant to plead noncompliance, the burden was equally upon her to prove it. "When plaintiff rested, he had made out a prima fade case, and there was not any evidence that he had not complied with the statutes.
The court erred in granting the motion for a nonsuit, and for this reason the judgment and order are reversed, and the cause is remanded for a new trial.
Reversed and remanded.