Quin v. Myles

59 Miss. 375 | Miss. | 1882

Chalmeks, C. J.,

delivered the opinion of the court.

By § 1300 of the Code of 1880 it is provided in substance that if any person transacts business as a trader, or otherwise, with the addition of the word Co. or company to his name, without disclosing by a conspicuous sign the name of his partners ; or if any person transacts business in his own name, without any addition thereto, all the property used or acquired in the business shall be liable to his debts. • Wachenheim & Herman entered into a written contract with Bazinsky, by which it was agreed that they should furnish the capital and goods for opening and carrying on a retail liquor and billiard saloon business in the city of Vicksburg. Bazinsky was to be a mere employee only, though he was to receive a third of the net profits for his services. The business, it was specified, was to be carried on in the name of “ Henry Bazinsky & Co.,” and in the name of “ Henry Bazinsky & Co.” the license for the business was obtained from the city authorities. Bazinsky testifies that the business was conducted by him under this license.

This was sufficient under the statute to make all the property used in the business liable to the individual debts of Bazinsky, though he had no real interest in it, and though no sign except that of “ Empire Saloon ” was placed over the door. It is immaterial that there was no sign of Bazinsky, or of Bazinsky & Co., over the door. The original agreement was that the business should be conducted under the name of “ Henry Bazinsky & Co.; ” the license was so taken out, and the business carried on under that license. This being so, it was incumbent upon those putting their property in the business to see that a sign was conspicuously posted, giving exact information as to the true ownership of the property. We have heretofore held that we would enforce this statute as it was written, without regard to whether the debts sought to be collected under it were antecedent or subsequent to the inauguration of the business, or whether creditors had actually been misled or not. Gumbel v. Koon, ante, 264.

Under Code 1871, § 651, a motion for a new trial was permissible but not obligatory, where the case was tried by the judge without a jury. Nicholson v. Karpe, 58 Miss. 34. Under Code 1880, §§ 1705, 1706, a motion for a new trial is not contemplated, but the bill of exceptions is taken directly to the judgment of the court. In this case, therefore, we must refer the bill of exceptions to the judgment rather than to the action upon the improper and unnecessary motion for a new trial. No such motion being contemplated by the law in this class of cases, it is immaterial that no formal exception was filed to the order overruling it.

Reversed and remanded.