Summary
In Creditors' Adjustment Co. v. Rossi, 26 Cal.App. 725, 148 P. 528, 529, a suit was brought by a plaintiff doing business under a fictitious name without having filed the certificate required by a statute.
Summary of this case from Sonnesyn v. Federal Cartridge Co.Opinion
Civ. No. 1509.
March 11, 1915.
APPEAL from a judgment of the Superior Court of the City and County of San Francisco. W. M. Conley, Judge presiding.
The facts are stated in the opinion of the court.
Leon Samuels, for Appellant.
Peter A. Breen, for Respondent.
This is an action for services rendered by J. B. Albert, who assigned his claim to the Benjamin S. Brown Agency, who in turn assigned the claim to the plaintiff. The action is based upon a written agreement.
The defendant Rossi had an option of a ground lease of certain real property in San Francisco, and was seeking a tenant who would take a lease of a building to be erected by him. His efforts in this behalf had progressed so far that he had entered into an agreement for a lease of the property with the Harry J. Moore Furniture Company, and on account thereof had received a deposit of two thousand dollars, but subsequently, owing to a dispute between them concerning the installation of a vault and steam-heating apparatus, the agreement for the lease was canceled by mutual consent, and the deposit was returned to the furniture company. Shortly after that the defendant secured the services of J. B. Albert, who had assisted him in negotiating the agreement for a lease just mentioned, to approach the furniture company and reopen negotiations for a lease. This was done, with the result that a second agreement for a lease was made with the furniture company, and the defendant received a deposit of two thousand dollars. For this service the defendant agreed to pay J. B. Albert five hundred dollars; and two days after the agreement for the lease was executed the defendant gave Albert the instrument which is the basis of this action, and according to the terms of which he promised to pay to Albert five hundred dollars when the lease should be executed. Subsequently the lease was executed by an assignee of the defendant.
Plaintiff recovered judgment for the amount sued for, with interest and costs, from which judgment the defendant has appealed.
Defendant's main contention on the facts is that Albert was to be paid the five hundred dollars only if he succeeded in getting the furniture company to sign a lease or an agreement for a lease which would not require the defendant to install a vault and steam-heating apparatus. If this be true, why did not the defendant see to it that the provision concerning this matter was incorporated in the contract, and why did he give to Albert the written agreement to pay the five hundred dollars two days after the agreement for a lease was executed, which agreement called for the installation of the vault and heating apparatus? In any event, the testimony introduced by plaintiff was to the effect that this condition was no part of the agreement for commissions.
The findings are abundantly supported by the evidence.
As before stated, J. B. Albert assigned his claim to the Benjamin S. Brown Agency, which in turn assigned it to the plaintiff. At the trial it developed that the first assignee was a copartnership doing business under a fictitious name, and that it had failed to file and publish the certificate required by the provisions of sections 2466 and 2468 of the Civil Code. As the statute stands to-day, and as it has stood since the amendment to those sections of 1911, neither a copartnership doing business under a fictitious name nor its assignee may maintain an action in any court of this state; but this action was commenced before the amendment, and is governed by the law as it stood at that time, which permitted assignees of such partnerships to maintain suits. ( Gray v. Wells, 118 Cal. 11, [50 P. 23].) And there is no merit in the defendant's suggestion that while plaintiff was within its rights in bringing the action, the action cannot now be sustained because the statute employs the word "maintain," reading "No person doing business under a fictitious name . . ., his assignee, . . . shall maintain an action," etc. The word "maintain" as here used means, to commence, institute, begin, or bring. (25 Cyc. 1664.)
The judgment is affirmed.
Lennon, P. J., and Richards, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal, on April 10, 1915.