Goldtree v. Swinford

Sharpstein, J. In their complaint, the plaintiffs, M. Goldtree, I. Goldtree, and M. Goldtree, allege that they are partners doing business under the firm name of Goldtree & Co., and as such partners, prior to the commencement of this action, filed with the clerk of the county in which the principal place of business of said partnership is now and has at all times been situated, a certificate, stating the names of the members of said partnership in full, and each of their places of residence, signed by all the plaintiffs, and acknowledged by them before an officer authorized to take acknowledgments of conveyances of real property, and by such officer certified as required to be certified to acknowledgments of conveyances of real property, and thereafter, and before the commencement of this action, published the same once a week for four successive weeks in a newspaper published in said county. This is followed by allegations sufficient to constitute a cause of action, in favor of the plaintiffs, against the defendants.

Answering the complaint, the defendants aver they have no information or belief upon the subject as to whether plaintiffs have made, filed, or caused to be published, at any time, the certificate mentioned and referred to in their complaint; and on that ground they deny that plaintiffs ever made, acknowledged, or caused to be published, said certificate.

This is the only issue which it is necessary now to consider. The finding of the court upon this issue is in [588]favor of the defendants. This finding is attacked on the ground that it is not justified by the evidence. The record shows that the plaintiffs introduced in evidence a certificate personally signed and acknowledged by all the plaintiffs, except 3ST. Goldtree, who signed and acknowledged the same by Isaac Goldtree, as his attorney in fact. An affidavit of publication of said certificate was also introduced. After which plaintiffs introduced a power of attorney from N. to Isaac Goldtree, and the latter testified that he communicated to the former the fact of liis having signed his name to the certificate about March 12, 1881.

Appellants insist that the evidence shows a sufficient compliance with section 2466-2468, Civil Code, to entitle them to maintain this action. Respondents deny it, and insist that plaintiff N. Goldtree, one of the partners, did not sign or acknowledge the certificate according to the requirements of said sections of the code; that the requirement “must be signed by the partners” is not satisfied by a signing by an attorney in fact of one of the partners, under a general power such as this is, executed eight years before the passage of the act requiring certificates to be signed, acknowledged, filed, and published as a condition precedent to the right to maintain an action upon a contract made in the partnership name. This power of attorney is general and quite full, as the following extract shows: “To commence and prosecute unto final judgment and execution any suit or suits, action or actions, real, personal, or mixed, which he may deem proper for the recovery, possession, or enjoyment of any matter or thing which is or may hereafter be due, payable, owing, belonging, accruing, or appertaining to me, for or by reason of the premises, or any part thereof, and in any such suits or actions, for me to appear and plead before any court or tribunals having jurisdiction thereof, and all stipulations undertaken, recognizance, and other requisites in any suits or ac