93 A. 1027 | Conn. | 1915
The plaintiff, doing business under the name of the New England Advertising Company, contracted in writing under that name with the defendants to furnish the latter with certain advertising for an agreed price per week. The plaintiff in his complaint alleges performance of this agreement on his part, and failure on the part of the defendants to make the stipulated payment in full, and seeks to recover the unpaid balance. The defendants plead, among other defenses, that the plaintiff had at no time prior to the commencement of the action filed in the office of the town clerk of the town where his business was conducted a certificate such as was required by chapter 277 of the Public Acts of 1911, p. 1586. A demurrer to this defense was overruled, and judgment rendered for the defendants. *295
The court below relied, and defendants' counsel rely, upon the principle enunciated in Funk v. Gallivan,
Whether the rule, thus broadly stated, does not have its exceptions or limitations, as has been held in cases of high authority, we have no occasion to inquire, since the situation here differs essentially from those presented in the Connecticut cases referred to, and does not come under the operation of the rule laid down in them. See Harris v. Runnels, 53 U.S. (12 How.) 79, 85;Dunlop v. Mercer, 86 C.C.A. 435, 156 F. 545, 555; In re Bunch Co., 180 F. 519, 527;Model Heating Co. v. Magarity, 2 Boyce (25 Del.) 459, 467, 81 A. 394; Pangborn v. Westlake,
A closer analogy to the present situation is to be found in cases such as Chieppo v. Chieppo,
In cases of this character, at least, whatever decisions to the contrary may be found in other jurisdictions, there is no inflexible rule of arbitrary application for the determination of the effect by implication of the prohibitory statute. The question is one of legislative intent to be gathered from the language of the statute *297
read in the light of the circumstances with which it deals, the remedial object apparently in view, and such considerations of public policy as may be involved in the conflicting claims of construction. Harris v. Runnels, 53 U.S. (12 How.) 79, 84; Dunlop v. Mercer, 86 C.C.A. 435, 156 F. 545, 556; In re Bunch Co., 180 F. 519, 528; Chieppo v. Chieppo,
Upon examination of the statute before us, two pertinent facts appear, to wit: (1) that it expressly imposes a penalty for nonobservance in the form of a fine or imprisonment, which latter may be for the term of one year; and (2) that no further penalty or consequence is attached. This has frequently been regarded as a significant indication of a purpose that the penalty expressed should be exclusive. Fritts v. Palmer,
The remedial purpose of the statute manifestly was that the public should have ready means of information as to the personal or financial responsibility behind the assumed name. Its aim was the protection of those *298 who might deal with or give credit to the fictitious entity. It obviously was not to provide a means by which persons having received a benefit from another should be enabled to retain it without compensation and to repudiate any agreement for compensation. Doubtless a penalty which held out a reasonable promise of securing compliance with the statute was intended; but one which had in it the possibility of a year's imprisonment would seem to be adequate to accomplish that end, and it would seem that a further penalty such as the defendants contend for would create a cumulative penal result with which the evil sought to be remedied was scarcely commensurate.
We are of the opinion that the intent of the General Assembly was that the penalty expressed in the statute should be exclusive, and that contracts otherwise lawful entered into in the course of a business carried on in disregard of the statute should be neither void nor unenforceable. The demurrer should have been sustained.
There is error, the judgment is set aside and the cause remanded for further proceedings according to law.
In this opinion the other judges concurred.