206 Mich. 20 | Mich. | 1919
On September 8, 1915, plaintiffs filed their bill of complaint in the circuit court of Wayne county in chancery to foreclose a statutory lien to collect a claimed balance due them for labor and material furnished in constructing for defendants a described store and flat building in Detroit, under a written agreement between the parties. The contract is dated July 7, 1914, and provides for completion of the building by December 28, 1914, at a stated price of $6,400, with $50 extra for moving a certain column, payments aggregating $4,500 to be made at certain stages as the work progressed and the balance on completion of the building. Plaintiffs allege in their bill that the last “labor and materials was fur
When the suit came on for hearing the latter objection was early urged for the defense and after briefly supplementing the pleadings and exhibits by certain undisputed facts counsel by consent submitted the question to the court on defendants’ motion, in the nature of a demurrer, that plaintiffs’ bill “be dismissed because the certificate of partnership was not filed as required in the above act.” After hearing counsel the court granted defendants’ motion and dismissed the bill of complaint.
It was conceded by counsel for both parties that “plaintiffs were copartners but did not file a certificate to that effect in accordance with Act No. 164 of the Public Acts of 1913, until after the contract was executed, but prior to the filing of the lien, however.” They in fact filed such certificate on April 29, 1915, and their claim of lien on May 4, 1915, commencing suit on September 3, 1915.
Counsel for defendants contended and the trial court apparently held that the case was controlled by Maurer v. Greening Nursery Co., 199 Mich. 522.
It appears that plaintiffs in their work as contracting partners were doing business under the firm name
In 1907 the legislature passed Act No. 101 (2 Comp. Laws 1915, § 6349 et seq.) “to regulate the carrying on of business under an assumed or fictitious name,”' prohibiting so doing unless a certificate is filed with the county clerk setting forth the name under which such business is owned or conducted and the true name or names of the person or persons owning and conducting the same with postoffice address, etc., violation. ¡of the act being made a criminal offense punish
The controlling reason which impelled the decision in the Maurer Case was that the firm of Maurer Brothers, a copartnership, as such and in its firm name, with no mention of the individual members composing it, entered into a contract in writing during the period it was in default and criminally liable to fine and imprisonment for failure to file the required certificate, rendering the contract absolutely void. In the instant case the written contract between the parties is in their individual names, personally signed by plaintiffs with their names set out in full in the body of the instrument, with no partnership name stated nor reference made to a partnership.
The stipulation that plaintiffs were partners, before quoted, if referred to the date of the agreement is not a stipulation that they contracted as such with defendants, nor does it serve to change the character of the written instrument by which they were obligated as individuals and not as a firm or copartnership. The written contract on its face and as it reads does not violate Act No. 164 and is not shown to be invalid. Defendants’ contention was in the trial court, and is here, that the contract entered into between plaintiffs and defendants is void because in violation of the statute, and as plaintiffs must necessarily rely entirely upon their contract to sustain their suit the bill should be dismissed. This the court did, on defendants’ motion in the nature of a demurrer. With this we are unable to agree for the reasons stated. The decree, or final order, dismissing plaintiffs’ bill will be reversed and set aside and, as other questions