Pendleton v. Cline

Fox, J. This was an action to recover $302 for services in making an abstract of title. The defendants put in a counterclaim for $6,000 damages, alleged to have been sustained by reason of the fact that the abstract was not made in time. The jury found a verdict in favor of the plaintiffs for $250, and the defendants appeal.

1. The facts stated in the counterclaim are, in substance, that if the plaintiffs had made the abstract in time, the defendants would have been able to borrow money on their property, and would have been able with such money to purchase other lands for which they had been negotiating, which latter land has subsequently increased in value in the sum of-six thousand dollars over and above what they could have purchased it for. The counterclaim is defective both in form and substance. The damages claimed are too remote, and the court properly excluded all evidence relating thereto.

2. The plaintiffs, whose names are C. W. Pendleton and W. J. Williams, were partners, doing business under the firm name of Pendleton & Williams. They have never published any certificate of copartnership; and it is contended that this prevents their recovery in this action.

Section 2466 of the Civil Code provides that “ every partnership transacting business in the state under a [144]fictitious name, or a designation not showing the names of the persons interested as partners in such business, must file with the clerk of the county in which its principal place of business is situated a certificate stating the names, in full, of all the members of such partnership, and their places of residence, and publish the same,” etc.

We do not think that the case before us falls within this provision. The name of one partner was Pendleton, and that of the other Williams. The firm name of Pendleton & Williams, therefore, was certainly not fictitious. It was true as far as it went. The only thing that can be said is, that it did not go far enough; that it was not a “ designation showing the names of the persons interested as partners.” But we think that if the legislature had meant so unusual a thing as a firm name showing the fall names of all the partners, it would have been more natural to have said so explicitly, — just as it did do in speaking of the names to be inserted in the certificate. The reason of the provision, doubtless, was to enable persons dealing with the firm to know whom to hold responsible, — whom to proceed against. And for all practical purposes this reason is satisfied by information as to the surnames of the partners. If, for example, a man desires to sue the members of a partnership, whose firm name informs him that the partners are a man named Williams and a man named Pendleton, it would be a matter of little difficulty for him to ascertain what the initials of those persons are. No one would pay much attention to him if he should say that he might he led into error in such a case. The inquiry would be too easy. It was not intended to relieve persons dealing with a partnership of all possible exertion or fatigue. For all practical purposes, the information mentioned would be sufficient. The reason of the provision, therefore, is satisfied by the construction which we give to it. The opposite construction is not required by the lan