Shain v. Du Jardin

SEARLS, C. This is an action to recover $440.30 for goods, wares and merchandise sold and delivered by Rice & Co., assignors of plaintiff, to the defendant. The cause was tried by the court, without a jury, and written findings filed, upon which judgment was entered in favor of plaintiff. The appeal is from the judgment and from an order denying defendant’s motion for a new trial. The sole point made by appellant is that his motion for a nonsuit should have been granted. The motion was based upon the ground that the proofs failed to establish the sale of .goods, wares and merchandise by Rice & Co. to defendant, or that there was evidence of the shle, delivery or value of any goods. A single witness was called for plaintiff, who testified, in substance, that he was manager in San Francisco for Rice & Co., liquor dealers of Covington, Kentucky; that he knew defendant, had interviews and correspondence with him. He said Rice & Co. sold defendant goods. He had been a customer of that firm before witness became manager, and, without consult[907]ing the books, could not tell the extent of defendant’s purchases. The witness then stated that the balance due June, 1892, was $547; that defendant called at the office; they agreed upon the balance due as $497.30", and defendant agreed to make monthly payments until all was paid. He made one payment of $57, and nothing further. Plaintiff then proved an assignment of the claim of Rice & Co. to plaintiff, under a power of attorney from that firm to J. C. Fyfe, executed by John C. Tost, who was shown to be the sole partner of the firm of Rice & Co. ’ Defendant offered no testimony. This uncontradieted testimony was sufficient to uphold the finding. It may well be doubted if, under the pleadings, any testimony was necessary as to the sale and delivery of the goods. The complaint was in the usual form, for goods, wares and merchandise sold and delivered by Rice & Co. to defendant at his request, at an agreed price, amounting to $440.30, which defendant promised to pay, etc. The complaint is verified. The only attempt at an answer is as follows: “Now comes the defendant above named, and, for his answer to the complaint filed herein, alleges and sets forth that, as this defendant is informed and believes, he denies that the firm of Rice & Co. delivered goods, wares or merchandise to this defendant amounting to the sum of four hundred and forty 30-100 dollars, or in any amount.” To say that as one is informed and believes he denies a thing is not to deny it positively nr upon information and belief, or a denial for want of information or belief.

The contention that Rice & Co. was a fictitious name, and for that reason they could not maintain an action, needs no extended comment. A single individual or an association of individuals may do business under a firm name entirely distinct from the name or names of the person or persons composing such firm. In the absence of fraud, and as between himself and those with whom he deals, a person may do business and execute contracts under any name he chooses to assume: Bell v. Publishing Co., 42 N. Y. Super. Ct. 567; Ex parte Snook, 2 Hilt. (N. Y.) 566; People v. Leong Quong, 60 Cal. 107. If the defendant purchased goods from the assignor of the plaintiff, who was doing business under the name of Rice & Co., he cannot, in the absence of fraud, evade