251 P. 237 | Cal. Ct. App. | 1926
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *472 Action by plaintiff for goods, wares, and merchandise upon assigned claims. Plaintiff had judgment and defendant appeals. Two appeals are presented upon one transcript, one from the judgment and one from the order of substitution of E.M. Casey as party plaintiff.
The transcript shows substantially the following facts: The American Type Founders Company, a New Jersey corporation, authorized to transact business in the state of California, maintains a branch in San Francisco, and also owns and does business in an allied industry under the designation of Printers Machinery Supply Company. Section 2466 of the Civil Code, relating to doing business under a fictitious name, appears to have been complied with. The appellant owned and operated two printing establishments, one in San Francisco and one in Los Angeles. Appellant purchased certain wood type at the agreed price of $1,631.82 from the American Type Founders Company, which was delivered to him in Los Angeles; appellant also purchased from Printers Machinery Supply Company a printing-press and certain supplies at the agreed price of $3,624.40. This press and supplies were also delivered in Los Angeles. Appellant has paid nothing to the American Type Founders Company on the purchase price of the wood type; on the purchase price due to Printers Machinery Supply Company, appellant has paid the sum of $1,000. The claim of the American Type Founders Company was assigned to D.A. Curtin, as likewise was the claim of Printers Machinery Supply Company. D.A. Curtin is a fictitious person, under which E.E. Curtin, the original plaintiff, did business. This plaintiff had also complied with the requirements of section 2466 of the Civil Code.
The answer of the appellant admitted the purchase of the merchandise referred to and then sets forth certain affirmative *473 matters, to wit: That the merchandise ordered from the American Type Founders Company at the agreed price of $1,631.82 was to be delivered to him in Los Angeles, free and clear of freight and cartage charges, but was delivered subject to such charges and the appellant had to pay therefor the sum of $200; that there was delay in the delivery of said merchandise, which reduced the value of said merchandise to $500 less the sum of $200 paid out by him and that there was not due to plaintiff upon account of the purchase of said merchandise any other than the sum of money so admitted; that the press purchased by the appellant was for the sum stated in plaintiff's complaint; that said press was to be in good working condition, with no broken parts; that the press had never been in good working condition and certain parts were broken; that by reason of which the press was worth only $1,500, on which he had paid the sum of $1,000, leaving a balance due of $500. The defendant then alleged his willingness to pay this sum and allow judgment to be entered therefor.
The answer of the appellant purported to deny the assignment of the claims to the plaintiff; also purported to deny the incorporation of American Type Founders Company; also purported to deny compliance with section 2466, Civil Code. These denials are in the following form: "Said defendant avers that he has not sufficient information on the subject sufficient to enable him to answer paragraph 1 of said second amended complaint and basing his denial upon said ground, the said defendant denies," etc. This denial refers to the doing of business under the fictitious name of D.A. Curtin by the plaintiff and also the filing of the necessary certificate by the plaintiff. On the same ground the defendant denies that the American Type Founders Company is a corporation, etc.; on the same ground denies that said American Type Founders Company had filed the necessary certificate. Changing the wording slightly, the answer reads: "Defendant avers that he has not sufficient information on the subject sufficient to enable him to answer the allegations contained in paragraph 4 of said second amended complaint and basing his denial upon said ground, said defendant denies that heretofore or prior to the commencement of this action said American Type Founders Company transferred its indebtedness to the plaintiff." After denying *474 the indebtedness of the Printers Machinery Supply Company and alleging the matters which we have hereinbefore stated, the defendant follows the form of denial herein last set forth in denying the assignment of said claim to the plaintiff. The allegation in the complaint of business being done under the firm name and style of Printers Machinery Supply Company, a fictitious name, is undenied.
All the grounds urged upon this appeal for reversal are strictly technical. There does not seem to be a single assignment of error which has anything of merit, or tending in the least to show that the defendant had any reasonable cause whatever to contest the entry of judgment in the lower court for the value of the merchandise sold and delivered to the defendant, as alleged by the plaintiff's assignors. For this reason we do not deem it necessary to set out the proof in the transcript establishing the facts alleged in plaintiff's complaint, but will content ourselves with saying that the transcript contains sufficient testimony to support the findings of the trial court. We do this because there is a sufficient technical answer to every technical objection made by the appellant. [1] The denials in the answer that the plaintiff and the plaintiff's assignors had not complied with section 2466 of the Civil Code, could not be made upon information and belief. In this case the denial is not even upon information and belief, but simply setting forth that the defendant has not sufficient information upon which to deny the allegations in the complaint, and basing his denial upon the lack thereof, denies, etc. [2] The law is well settled, as stated inArt Metal Const. Co. v. A.F. Anderson Co.,
[3] The denials as to the corporate capacity of plaintiff's assignor is likewise insufficient to raise an issue. [4]
Section
[5] At the beginning of the trial the plaintiff moved that the defendant be required to submit proof as to the affirmative allegations contained in his complaint. The defendant declining to go forward, the plaintiff moved for judgment upon the pleadings. This was in accordance with the procedure laid down in the cases cited in Cooney v. Gray,
[6] Objection is made that there was irregularity in the taking of the deposition of the defendant. The record shows, however, that this deposition was never completed, was never signed by the defendant, and was introduced only as his statement and not as his deposition. [7] After the trial had been concluded, judgment entered and motion for a new trial denied, upon the application of E.M. Casey, showing that he had succeeded to all the rights in this action theretofore owned and possessed by E.E. Curtin, substitution of plaintiff was ordered. It is from this order that the appellant also appeals. The record shows that at the time of the institution of the action the cause of action was owned and possessed by E.E. Curtin; that during the continuance of the action all the rights of the plaintiff were assigned and set over to E.M. Casey. Section
[8] The objection is further assigned that the so-called deposition of the defendant to which we have referred was taken before E.M. Casey, as a notary public. The record shows, however, that the so-called deposition of the defendant was taken by stipulation before a stenographer and that E.M. Casey, the notary public before whom it purported to be taken, need not be present. The deposition, however, was not certified to, never completed, never signed, and, therefore the objection of the defendant is without merit. As a statement of the defendant no objection appears to have been made to its admission and, therefore, it does not require any further consideration on our part. The assignment of the plaintiff E.E. Curtin was first made to E.J. Casey and E.M. Casey and then fully taken over by E.M. Casey.[9] Objection is now made that there is no showing that E.M. Casey has complied with section 2466 of the Civil Code. As stated in Amundson v. Shafer,
[11] It is further insisted that the doing of business under the designation of "Printers Machinery Supply Company" is beyond the power of the American Type Founders Company, a corporation, and, therefore, that recovery cannot be had for the value of the press sold and delivered to the defendant. In this particular, the appellant admits that he has found no authority on the subject and simply presents for our consideration sections 354 and 355 of the Civil Code, in connection with section 2466 of the same code, and insists that compliance with the latter section is not sufficient. It *477
is not necessary for us to determine whether a foreign corporation can or cannot, or whether a domestic corporation can or cannot, do business in this state under a fictitious name, for the simple reason that there is another principle announced which estops a creditor from using this convenient method of discharging his obligation. In Yancy v. Morton,
It may be further stated that the substitution of E.M. Casey as plaintiff in this action was caused by the fact that some time after judgment was entered herein E.E. Curtin died.
The appellant in this case having chosen to introduce no evidence whatever to establish the affirmative allegations of his answer and the other matters appearing, which we have stated, there appears no valid reason why we should lengthen this opinion by setting forth testimony showing that the findings of the trial court, upon which the judgment is based, are supported.
The judgment and the order are affirmed.
Preston, J., pro tem., and Finch, P.J., concurred.