Trudel v. Butori

127 P. 76 | Cal. Ct. App. | 1912

This is an appeal by defendants from a judgment against them and from an order denying their motion for a new trial in an action brought by plaintiff against defendants for an alleged balance due for work done and labor furnished.

In January, 1907, defendants entered into a contract with W. Ottmann, in which contract Ottmann agreed to construct for defendants a certain building in San Francisco. With the consent and approval of defendants Ottmann assigned this contract to F. X. Trudel Son, who at that time were engaged as copartners in the contracting business. At the request of the defendants there was some extra work done, and plaintiff, F. X. Trudel, as assignee of the copartnership, claims that on account thereof, and on account of an unpaid balance on the original contract, there is due him the total sum of $710.55.

The cause was tried by a jury, which returned a verdict in favor of plaintiff F. X. Trudel for the sum of $550, and judgment for that sum was accordingly entered.

There were several amendments to the complaint, but the allegations of the pleading upon which the case was finally tried show that F. X. Trudel and his son Arthur Trudel were carrying on business under the firm name of F. X. Trudel Son. It is asserted by defendants that this is a fictitious designation, and that as the complaint does not show that the partnership had complied with the provisions of section 2466 of the Civil Code, they contend that their demurrer, which raised this point, should have been sustained.

There are a number of authorities which seem to hold that this designation is not fictitious (Guiterman v. Wishon,21 Mont. 458, [54 P. 566]; Vaughan v. Kujath, 44 Mont. 484, [120 P. 1121]; Pendleton v. Cline, 85 Cal. 142, [24 P. 659]; Wilson v. Yegen Bros., 38 Mont. 504, [100 P. 613]); but it is unnecessary for us to pass upon the point in this case, for it is alleged in the complaint that the copartners assigned the claim against the defendants to the plaintiff F. X. Trudel, in whose favor judgment was entered; and it has been repeatedly held in this state that while such partnership, not having complied with section 2466, Civil Code, may not maintain an action on a contract made by it, nevertheless its assignee may do so. (Gray v. Wells, 118 Cal. 11, [50 P. 23].) There is, therefore, no merit in this point. While the evidence of the assignment is meager, still we think, under all the circumstances of the case, it must be deemed sufficient.

In view of the stipulation of the parties in open court at the time of the oral argument, it is unnecessary for us to pass upon the point made by defendants concerning the complaint in intervention.

The judgment and order are affirmed.

Hall, J., and Lennon, P. J., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on September 14, 1912, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 14, 1912.