Oregon Cedar Etc. Co. v. Ramos & Kohler

KAUFMAN, J.

This is an appeal by defendants from a judgment in favor of plaintiff in the sum of $24,612.55 in an action based on a complaint for money brought against Ramos and Kohler, a partnership, and Joseph M. Kohler, individually

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and as a partner in said firm. The complaint alleged three causes of action, each in the form of a common count, for goods sold and delivered, in the sum for which judgment was rendered.

Respondent contended at trial that the debt was incurred by the partnership, and that appellant Kohler was individually liable. Appellants maintained that the debt was incurred by Ramos and Kohler, Inc., a California Corporation, hence no liability for the debt was incurred by appellant Kohler individually.

The trial court found that the debt for all of the items of plaintiff's account was incurred by Joseph M. Kohler individually and as a partner of Ramos and Kohler and that all credit extended by plaintiff for said account was extended to Joseph M. Kohler, individually and as member of the partnership. It was further found that plaintiff had not extended credit to the corporation of Ramos and Kohler, Inc., and that no part of the debt had been incurred by the corporation.

The account sued upon commenced in 1952. All billings thereon were to Ramos and Kohler, the partnership, which was composed of Jack Ramos and Joseph Kohler. The partnership came into existence in 1945, and held a roofing contractor’s license. Mr. Ramos died in June, 1954, and there was no probate of his estate. On May 20,1953, the corporation of Ramos and Kohler, Inc. was organized and corporation papers were filed in the office of the County Clerk of San Mateo County on May 22, 1953. On May 21, 1953, the partnership owed respondent the sum of $21,123.99 and at no time subsequent to this date did Ramos and Kohler owe less than this sum to respondent, and much of the time thereafter it owed a greater sum.

Although appellant Kohler contended that the contractor’s license was changed immediately upon incorporation to the corporation, a photostatic copy of the corporation’s application for such contractor’s license is dated February 15, 1954, and such license was not issued until July 22 of that year. In the application in answer to the question of whether any person listed under “Personnel of applicant” was presently licensed as a contractor either as an individual, member of a copartnership or corporation, the answer “Yes” was given, and the name “Ramos & Kohler” with the license number. In answer to question 12, “Does applicant intend to do business as a corporation,” the answer “Yes” was given.