Opinion
Rehearing granted March 29, 1929
Appeal from Superior Court, Los Angeles County; Percy S. King, Judge.
Action by the Collection Service Corporation against C.B. Conlin. Judgment for plaintiff, and defendant appeals. Modified and affirmed.
COUNSEL
Wm. M. Morse, Jr., and E.R. Simon, both of Los Angeles, for appellant.
A.P. Michael Narlian, of Los Angeles, for respondent.
OPINION
STEPHENS, Justice pro tem.
This is an action upon an open book account, the plaintiff suing as the assignee of "Alles Printing Company." The complaint alleges "that at all the times herein mentioned Fred L. Alles was doing business under the registered fictitious name of Alles Printing Company." Plaintiff received judgment for $497.70, and the findings are in accord with the allegation just quoted. There is no allegation, evidence, or finding in the case that that portion of section 2466 of the Civil Code which requires the publication of a certificate as to a fictitious name or the names comprising a partnership has been complied with. Defendant asks a reversal of the judgment, assigning this as error. However, there is no error, for the simple reason that the Code requires the publication only where there is a fictitious name used or where a partnership is doing business. There is no fictitious name used, and the finding to that effect is mere surplusage. Spreckels v. Grace Darling Hospital Ass’n, 28 Cal.App. 646, 153 P. 718; Andrews v. Glick (Cal.Sup.) 272 P. 587.
There is no partnership alleged, proven, or found. It is true that Mr. Alles made general use of the pronoun "we" in testifying as to his business, and also stated that his son-in-law was his partner at the time of the trial, but directly testified that he was the proprietor of the business during 1920. The books showed the first item on the account as under date of April 19, 1920. The trial court found that the last item on the account was under date of October 5, 1920. But he also testified, and the court found, that Fred L. Alles was doing business as "Alles Printing Company" at all times mentioned in the amended complaint. Of course, there is no occasion here for questioning this finding. See Willey v. Crocker-Woolworth Nat. Bank, 141 Cal. 508, 513, 75 P. 106, upon the point that the use of the words "Printing Company" does not import a partnership. Under the authorities, Fred L. Alles in his individual capacity had a right to conduct his business under the name of Alles Printing Company without the registration and publication required by section 2466 of the Civil Code.
Defendant also assigns as error the fact that the complaint alleges that the account was assigned by Alles Printing Company and the findings are that the assignment was by Fred L. Alles; but, as the two are the same, there is nothing to the point.
The next assignment of error is under two designations, A and B, to the effect that there is no evidence sustaining the finding that the defendant is indebted to the plaintiff’s assignor on an open book account for a balance in the sum of $497.70, all within four years prior to the date of filing suit: (A) In that there is no evidence that defendant ever gave any orders for the printing charged for, or (B) to the effect that the printing charged for was ever delivered to defendant. Fred L. Alles testified that he personally had a conversation with the defendant on the subject of the charges, and that defendant acknowledged the correctness of the book account in the sum of $485.41, and thereupon paid $85.41, so as to leave the account standing in the round figure of $400. At the same time, according to Alles’ testimony, defendant gave a new order for printing amounting to $96. The testimony regarding the correctness of the book account makes it unnecessary to pursue the question of orders or delivery of the printing which was charged for in the books up to this point. In other words, this testimony, though denied by defendant, is sufficient to support the judgment for the sum of $400.
The payment for and the delivery of the printing for the new order must now be considered. The defendant admits the payment of the $85.41, but denies it was a payment on account. He claims it was a cash payment for the new order of printing. Here, of course, is a direct conflict in the testimony. Alles claims that the new order was for $96, which was not paid, and that the $85.41 was on the old account, while defendant claims the new order was not for $96, but was for $85.41, which he thereupon paid. Of course, we must resolve the question in favor of supporting the judgment, which compels us to consider Alles’ version as the correct one. A new order was admittedly given, and we have seen that defendant even claims he paid for it. Defendant does not testify that it was never delivered. He does not ask for the refund of the money he claims he paid for it. It seems to us that this amounts to a concession that it was delivered. And this is further confirmed by the fact that much business was admittedly done between plaintiff’s assignor and defendant over a period of several months.
The judgment appears to be for the sum of $1.70 too much. The judgment is modified by deducting therefrom the sum of $1.70, and as so modified it is affirmed. Respondent to recover costs on appeal.
We concur: WORKS, P.J.; CRAIG, J.