Hamblet v. Steen

65 Miss. 474 | Miss. | 1888

Lead Opinion

Campbell, J.,

delivered the opinion of the Court.

This case involves the consideration of § 1300 of the Code' as applicable to a case different from any we have heretofore decided.

In Schoolfield v. Wilkings, 60 Miss., 238, it was admitted that “Mrs. W. was doing business as a merchant with her own. means and in her own name,” and her husband was her agent and clerk, and it was held that in this state of case a sign was-not required.

In Cato v. Hardie, No. 4797, not reported, the facts are that Cato went to St. Louis and purchased a car-load of mules and shipped them in his own name to Hazlehurst, where they were put in a livery stable and exhibited and offered for sale by him, and on the next day after their arrival they were seized 'under execution against Cato. The wife of Cato and Hardieclaimed the mules, but they were decided to be liable to execution as the property of Cato, by virtue of § 1300. The case now before us is distinguished from all that have preceded it by the fact that the business was transacted partly in the name of Mrs. Hamblet, who owned the property. The lease of the stable building was in her name, and the bill of sale of personal property was, and she obtained licenses, and books were kept in her name, and accounts were made out against customers in her name. Mr. Hamblet conducted the business, and was usually at the stable, personally superintending it and managing it, and he is shown to have given two orders for the payment of dues to the stable proprietor, and signed his name to them. There was an advertisement in the village newspaper of the stable as “ Carr Stable,” managed by Mr. Hamblet. The only sign at the building was “ Carr Stable.” The license was posted up in the office of the stable. Ha mblett spoke of the business and property as his, and acted as proprietor to all appearances. A number of persons were aware of the fact that the stable and property belonged to Mrs. Hamblet. Some were led to conclude from what they saw that Mr. Hamblet was proprietor.

It is thus seen that while the “ esoteric” circumstances of the business were in the name of Mrs. Hamblet, the exoteric pointed to Mr. H., as owner, and the question is, does § Í300 subject the property to liability for the debts of Mr. Hamblet ?

The object of § 1300 is to prevent fraud. The means it adopts to accomplish that is to require the conspicuous display at the place of business of a sign which shall plainly disclose the name of the true owner, otherwise the property used or acquired in the business shall be liable to the creditors of him who appears to the world to be the owner, by dealing with it as owners usually do. This law has regard to the external indicia of ownership, and by these stamps ownership on the property, to the extent of liability to the creditors of him who appears to be owner. A sign which shall proclaim the real owner is required where one owns and another conducts the business; so that the public may be informed how matters are. In this case there was no sign except the old one, as stated above. The advertisement in the newspaper was a mere circumstance in the conduct of the business, but it proclaimed that the business was managed (transacted) by Mr. Hamblet. The license posted in the office was not such a sign as the law requires. The external and visible acts connected with the transaction of the business were performed by Mr. H., and pointed to him as owner. It would have been easy to save the rights of Mrs. H. Only a plain sign placed conspicuously at the stable disclosing that she was principal was necessary. In the absence of that the question is, who transacted the business ?

It will not do to say that Hamblett was not transacting business in his own name, and therefore the case is not within the statute. The words of the statute, “ or, if any person shall transact business in his own name, without any such addition, ” etc., do not have the effect to permit one to do business in a fictitious name or in that of some one not the owner of the property, and thus escape its consequences. That is the very evil which it was made to extirpate. The words “ in his own name without any such addition ” are designed to meet the case of one who transacts business without any such addition as is mentioned for illustration, and not in the name of some person other than himself, who is the real owner. Whoever transacts business without doing it in the name of another does it in his own name and character, necessarily. The statute does not mean that it shall be defeated by the easy disguise of a fictitious name, or a real name of one not the owner, or evaded by the artful dodge of not using any name at all. It proceeds on the assumption that, if one transacts business without doing it in the name of another, he does it in his own name, and it applies wherever one transacts business, not in the name of another, who is the true owner of the property employed. The chanceller found that Mr. Hamblett transacted the business in the meaning of the statute, and we concur m that view. Affirmed.

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Dissenting Opinion

Arnold, C. J.,

dissenting.

I do not concur in the opinion of the majority of the court. I vote to reverse the judgment of the- court below. On the facts of record the judgment should be for appellant.

If it be conceded that the business, as it was carried on, was within the meaning of the statute, the question for decision then is, was the business transacted in the name of Mrs. Hamblett or of her husband ? It was certainly transacted in the name of one or the other, or both, and not in a fictitious name. I am unable to deduce from the evidence that it was transacted by the husband, in his own name. It seems to me that the most important parts of it were transacted publicly, in the name of the wife, and that the husband was no more than a common clerk or employee in the matter. A statute which produces forfeiture of estate, or which is so harsh and penal in its consequences as to arbitrarily •.condemn the property of one person to pay the debts of another, when no fraud or wrong is suggested, intended or accomplished as to others, by the use which is being made of the property by its owner, ought not, in my judgment, to be applied in a doubtful case. It should be construed strictly, and its application limited to cases that are brought fully and clearly, in every respect, within its letter.