Trudel v. Butori

KERRIGAN, J.

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.

[586]

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 Pac. 566];

Vaughan

v.

Kujath,

44 Mont. 484, [120 Pac. 1121];

Pendleton