Spreckels v. Grace Darling Hospital Ass'n

RICHARDS, J.

This is an appeal from a judgment in favor of the defendant after an order sustaining its demurrer to the amended complaint, the plaintiff having refused to further amend. The action is one brought to recover for the agreed price of certain advertising published in the

San Francisco Call,

in accordance with a contract in writing, which is set forth in the complaint; the plaintiff alleging that he was at the date of the filing thereof the owner and proprietor of the

San Francisco Call,

a morning newspaper; and that one W. W. Chapin was his agent in the publication thereof. The advertising contract shows upon its face that it was made with the

“San Francisco Call,

W. W. Chapin, publisher,” and is signed only by the defendant as the party to be charged. The complaint further states that the plaintiff approved, ratified, and performed the portion of said contract to be performed by him, by printing and publishing the advertisement of the defendant in said newspaper for the specified time. The same cause of action is also pleaded in a second count in the complaint in the form of the common count for services performed.

The defendant’s demurrer is general and is also special upon the ground of uncertainty, and also upon the ground that the plaintiff has not the legal capacity to sue. The point raised upon this special demurrer is that the complaint shows that the plaintiff is doing business under a fictitious name and that it does not appear therefrom that he has complied with the provisions of sections 2466 and 2468 of the Civil Code. These are the sections of the Civil Code which provide that every person transacting business in this state under a fictitious name must file with the county clerk a certain certificate and publish the same for a specified length of time; and providing further that such person shall not maintain an action upon any contract made or transaction

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had under such fictitious name, unless such filing has been done and such publication made.