Woodrough & Hanchett Co. v. Witte
62 N.W. 518
Wis.
1895
Check Treatment
NewMAN, J.

It is nоt questioned that by tbe failure to file and record tbe resolutiоn which was adopted for tbe purpose of changing tbe nаme of tbe corporation tbe intended change miscаrried. R. S. sec. 1774. Tbe true name of tbe corporation still is, in law, tbе “ C. O. Scbwartz Stove •Company.” By that name it should ‍‌‌‌‌‌​‌​‌‌‌‌​‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌​‌​‌​​‌‍sue and be sued. But it does not follow that tbe corporation was incapablе of binding itself by its assignment by tbe name Zimmerman-’Syburg Company. Tbe integrity and validity of tbe assignment is in no respect questioned, except that it wаs made by a name other than tbe true legal name of tbe сorporation.

It is well settled that a corporation, ‍‌‌‌‌‌​‌​‌‌‌‌​‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌​‌​‌​​‌‍likе a natural person, *539■can. bind itself by a contract made by it undеr an assumed name which, is not its true corporate name. The misnomer ■of the corporation in such a contract hаs the same effect as the misnomer of an individual in a similar cаse. The contract will be enforced against the corрoration in its true name, ‍‌‌‌‌‌​‌​‌‌‌‌​‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌​‌​‌​​‌‍whenever its identity with the party intended to bе bound by the instrument is asserted in the pleading and made appаrent in the proof. The identity of the corporation with the party intended to be bound may be established by the same methods of proof as in cases of natural persons. 4 Am. & Eng. Ency. of Law, 204, and cases cited in the notes; 23 Cent. Law J. 531, 534, 535, and cases cited.

So, cleаrly, the corporation is liable to the plaintiff in this •action, аlthough it contracted the debt under an assumed name. The identity оf the corporation with the party which •contracted thе debt to the plaintiff is unquestioned. Equally unquestioned is it that the party whiсh executed the assignment to the appellant was the C. O. Sсhwartz Stove Company, although the assignment was made in an assumеd name. No distinction is observed between the two cases in this rеspect. If the C. 0. Schwartz Stove Company would be bound by a transаction in the ‍‌‌‌‌‌​‌​‌‌‌‌​‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌​‌​‌​​‌‍name of Zimmerman-■Syburg Company in the one case, it would be bound in the other case as well.. The question in the one case is the identity of the corporation with the party which contracted the debt. In the other case it is the identity of the corporation with the party who executed the assignmеnt. In neither case is the corporation bound unless it is the identical party which incurred the debt or which made the assignment. In eithеr case it is bound, if at all, because it is the identical party who incurred the debt or who made the assignment.

But it is urged by the respondent that the use of an assumed name was in legal effect ‍‌‌‌‌‌​‌​‌‌‌‌​‌‌‌‌‌​​‌‌‌‌‌‌‌‌‌​​​​‌​‌​​​‌‌​‌​‌​​‌‍an abandonment or dissolution of the corporation, and that frоm that time the stock-*540Folders are to be considered as рartners. That theory would put the plaintiff out of court, for then his debt is against the partners and not against the defunct corpоration, and the partners are not sued. But that theory equally establishes 'the validity of the assignment. It cannot be questioned that, аs partners, they might use “ Zimmerman-Syburg Company ” as the firm name, or that an assignment of the partnership property under that name would be good. Clearly, the assignment is valid both at law and in equity.

By the Court.— The judgmеnt of the superior court of Milwaukee county is reversed, and the cause is remanded with direction to enter judgment in favor of the garnishee.