Bank & Trust Co. v. Gearhart

WASTE, P. J.

This action was brought by plaintiff, as assignee, to recover the sum of one thousand dollars and in

[422]

terest, alleged to be due from defendant upon a contract with The Oscar Parlier Company, for the purchase of an automobile, and on which the initial payment of eight hundred dollars had been made. Plaintiff recovered judgment and defendant appeals. The principal contention of the appellant, as stated by his counsel, is that “The Oscar Parlier Company was a copartnership, doing business under a fictitious name, which copartnership had failed to comply with the provisions of sections 2466 and 2468 of the Civil Code of the state of California, and therefore its assignee cannot recover in this action.”

[1]

In support of his position appellant argues, first, that the evidence shows conclusively that the Oscar Parlier Company, the copartnership, found by the trial court to consist of Mrs. Bertha Y. Parlier and Kathryn Hall Wilson, the only parties executing the certificate of fictitious copartnership required by the section of the Code, in reality consisted of those two and Oscar Parlier, husband of the first-mentioned partner. In this appellant is mistaken. Mrs. Parlier and Kathryn Hall Wilson are sisters. The uncontradicted testimony of the former is that the entire capital contributed to the partnership fund was their own money, derived from the estate of their mother, and money borrowed, and that no other person was interested in the company. The only additional testimony, on which appellant relies, merely established the fact that the business bore the name of Mrs. Parlier’s husband, and that he had authority to sign contracts and checks, in the name of the firm, and to draw money for his own use, charging himself with it. This evidence was insufficient to bring Mr. Parlier within the operation of section 2395 of the Civil Code, defining a partnership. The court’s finding upon the matter was, therefore, correct.

Appellant’s second point is that the certificate of co-partnership had not been filed and published in the manner prescribed by section 2466 of the Civil Code, in that it was published first and filed afterward in the office of the county clerk. The section provides that persons transacting business in this state under a fictitious name, or designation not showing the names of the persons interested as partners in such business, “must file with the clerk of the county ... a certificate, stating the name in full and the place of