Opinion
Rehearing Denied Oct. 3, 1929
Hearing Granted by Supreme Court Nov. 4, 1929
Appeal from Superior Court, City and County of San Francisco; C.J. Goodell, Judge.
Action by W.S. Wetenhall, doing business under the name and style of the W.S. Wetenhall Company, against the Chas. S. Mabrey Construction Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.
COUNSEL
Robert H. Schwab, of Sacramento, for appellants.
G.R. Perkins, of San Francisco, for respondent.
OPINION
PRESTON, Justice pro tem.
This is an appeal by the defendants, Charles S. Mabrey Construction Company and Globe Indemnity Company, from a judgment entered against them upon the pleadings. This is an action by plaintiff against the contractor as principal and the bonding company, above named, as surety, for materials furnished to the contractor and used in the construction of a building in San Bruno, Cal.
Appellants rely upon two special defenses which are set forth in their answer: First, "that plaintiff has failed to comply with the provisions of section 2466 to section 2468, inclusive, of the Civil Code of the State of California, and for that reason said action is barred." Paragraph I of the complaint is as follows: "That plaintiff now is and was at all times herein mentioned doing business under the name and style of W.S. Wetenhall Company, with his office and principal place of business in the city and county of San Francisco." Section 2466 of the Civil Code provides: "*** Every person transacting business in this state under a fictitious name and every partnership transacting business in this state under a 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 his or its principal place of business is situated, a certificate, stating the name in full and the place of residence of such person and stating the names in full of all members of such partnership and their places of residence."
The first question, therefore, to be determined is whether the name "W.S. Wetenhall Company" is a fictitious name. An examination of the following authorities fully convinces us that the name "W.S. Wetenhall Company" is not fictitious. Spreckels v. Grace Darling Hospital Ass’n., 28 Cal.App. 646, 648, 153 P. 718; Pendleton v. Cline, 85 Cal. 142, 24 P. 659; Carlock v. Cagnacci, 88 Cal. 600, 601, 26 P. 597; McLean v. Crow, 88 Cal. 644, 647, 26 P. 596; Lamberson v. Bashore, 167 Cal. 387, 391, 139 P. 817; Andrews v. Glick (Cal.Sup.) 272 P. 587; Hall et al. v. King (Cal.App.) 279 P. 814.
If the name "W.S. Wetenhall Company" is not fictitious, then he does not come within the purview of section 2466 at all, for the reason that he is an individual doing business under the name and style of "W.S. Wetenhall Company," and is not a partnership. That portion of section 2466 of the Civil Code reading "or a designation not showing the names of persons interested as partners in such business," etc., refers only to partnerships and not to an individual. Or, in other words, if the name used by W.S. Wetenhall is not fictitious and no other person is interested with him in the business, he does not have to comply with said section 2466. This section is not susceptible of any other reasonable interpretation. Our conclusion is strengthened by the language used in the latter part of section 2468 of the Civil Code, which reads: "No person doing business under a fictitious name, *** nor any persons doing business as partners contrary to the provisions of this article, *** shall maintain any action *** until the certificate has been filed and the publication has been made. ***"
We are not unmindful of the fact that in such cases as Andrews v. Glick, supra; Hall v. King, supra; North v. Moore, 135 Cal. 621, 67 P. 1037; Schwarz & Gottlieb, Inc., v. Marcuse, 175 Cal. 401, 165 P. 1015; Nicholson v. Auburn Gold Min., etc., Co., 6 Cal.App. 547, 92 P. 651, and similar cases, the courts have held that the various names used, while not fictitious, were designations not showing the names of the persons interested as partners in the business, and therefore were required to file the certificate under section 2466 of the Civil Code. An examination, however, of these cases will show that in all of them two or more persons were interested in the business. We have been unable to discover any case in which a single individual who was doing business under a name not his own, but one which was not fictitious, was required to comply with said section 2466, before he could maintain an action, notwithstanding, from the name used alone it might be impossible to determine how many persons were interested in the business.
The second contention made by appellants is wholly without merit. The portion of the answer relied upon does not raise any issue whatever, and needs no special discussion. We think the judgment should be affirmed, and it is so ordered.
We concur: KOFORD, P.J.; NOURSE, J.