The force of these citations is lessened by the fact that Horning v. McGill apparently is overruled by Humphrey v. City National Bank, 190 Ind. 293, and by Piggly-Wiggly Stores, Inc. v. Lowenstein, 197 Ind. 62, and by legislation in Michigan and North Carolina to the effect that the failure to comply with the statute requiring persons carrying on business under a fictitious name to file a certificate shall not prevent a recovery by such persons in a civil action. Against the position taken in these decisions, that the statute applies both to debtor and creditor and that the object is not limited merely to the protection of persons giving credit to those doing business under an assumed name, the clear majority rule is that the only purpose of the statute is to protect persons giving credit to those doing business under an assumed name, Zimmerman v. Erhard, 83 N.Y. 74, Gay v. Seibold, 97 N.Y. 472; and that statutes of the character of the one under consideration are to be strictly construed because they are penal and are in derogation of the common law which permits, in the absence of fraud, a person to adopt any name, style or signature wholly different from his own name by which he may transact business, execute contracts, and issue negotiable paper. William Gilligan Co. v. Casey, 205 Mass. 26. Rand v. Farquhar, 226 Mass. 91, 97. Union Brewing Co. v. Interstate Bank Trust Co. 240 Ill. 454. Swanson Automobile Co. v. Stone, 187 Iowa, 309.
The statute is penal; its violation is a crime. We may not amplify it by construction ( Wood v. Erie R. Co., 72 N.Y. 196, 198; Zimmerman v. Erhard, 83 N.Y. 74, 77; Gibbs v. Arras Brothers, 222 N.Y. 332, 335; U.S. v. Bathgate, 246 U.S. 220, 225). Our decision does not reach beyond the precise facts before us. There may be cases where the true name is so suppressed and the old name so emphasized that the public are likely to be misled.
Under the first assignment of error the defendant contends that the partnership doing business under the name and style of the John H. Miller Company is a fictitious name or designation, not showing the names of the persons interested as partners in such business, and further contends that the filing of the statement and making the publication as alleged in the reply after the institution of the suit does not cure their failure to do so prior to the commencement of the action. In the case of W. K. Patterson and N.H. Patterson, Partners, as the Patterson Furniture Company v. Byers, 17 Okla. 633, 89 P. 1114, 10 Ann. Cas. 810, it is held that such firm name is not a fictitious one, and in support of that holding under similar statutes, the court cites Pendleton et al. v. Cline et al., 85 Cal. 142, 24 P. 659; McLean et al. v. Crow, 88 Cal. 644, 26 P. 596; Guiterman Bros. v. Wishon, 21 Mont. 458, 54 P. 566; Carlock et al. v. Cagnacci, 88 Cal. 600, 26 P. 597; also Zimmerman v. Erhard, 83 N.Y. 74, 38 Am. Rep. 396, where J. Zimmerman Co., being a partnership composed of J. Zimmerman and Mary Zimmerman, his wife, was held not a fictitious designation. But if John H. Miller Company is a fictitious name or designation, not showing the names of, the persons interested as partners in such business, was not the statute fully complied with by the filing of the certificate and making the publication, as alleged in the reply? Counsel for defendant say it is not, and call our attention to Baker v. L. C. Van Ness Co., 25 Okla. 34, 105 P. 660.
Now, in the case at bar, the petition sets forth the true names of the partners doing business under the firm name of "Patterson Furniture Company" and we think it comes clearly within the rule laid down by the Montana supreme court, and is not a fictitious name, nor a designation failing to show the true names of the partners. In Zimmerman v. Erhard, 83 N.Y. 74, it is held: "That under a statute prohibiting the use of names in the firms of persons not interested and requiring that ' Co.' show representing actual partners, 'J. Zimmerman Company,' representing a partnership composed of J. Zimmerman and Mary Zimmerman, his wife, is not a 'fictitious designation.
Smith v. Crosby, 47 Tex. 128; Perkins v. Hart, 11 Wheat., 237; Hutchens v. Sutherland, 22 Nev. 363; State v. Jones, 21 Nev. 510; Moore v. Bonnett, 40 Cal. 251; Clark v. Baker (Mass.). 5 Met., 452;Lucessco Oil Co. v. Brewer, 66 Pa. 351; Quigley v. De Hass, 82 Pa., 267; Terry v. Beatrice Starch Co., 62 N.W. Rep., 255; West Republic Min. Co. v. Jones, 108 Pa. 55; Coleman v. New Orleans Ins. Co., 16 L.R.A., 177; Zimmermann v. Erhard, 83 N.Y. 74; Lee v. Taylor, 11 N.Y. Sup., 131; 2 Parsons on Contracts, 517; 9 "Cyc.," 648, and cases cited in notes. Iowa Brick Mfg. Co. v. Herrick, 126 Ia., 721, 102 N.W. Rep., 787; Hansen Linehan v. Consumers' Steam Heating Co., 73 Ia., 77; McLaughlin v. Hess, 164 Pa., 570; Withers v. Reynolds, 2 Barn Ad., 882; Veerkamp v. Hurlburd Canning Drying Co., 58 Cal. 229; Reybold v. Voorhees, 30 Pa., 116; Robinson v. Exempt Ins. Co., 103 Cal. 1; Bowers Granite Co. v. Farrell, 66 Vt. 314; Hindrey v. Williams, 9 Colo. 371.
" Partners are the agents of each other and are jointly and severally liable for the debts of the firm, these being two of the essential elements of a contract partnership. It being settled that husbands and wives may be the agents of each other, and that they may bind themselves by joint contracts entered into with third persons, we see no warrant in the statute for exempting them from liability to creditors for debts incurred by firms of which they are members. It has been so held in Graff v. Kinney (37 Hun, 405; 15 Abb. [N.C.] 397); Zimmermann v. Erhard (8 Daly, 311; 83 N.Y. 74). Opposed to these are Chambovet v. Cagney (3 J. S. 474); Kaufman v. Schoeffel (37 Hun, 140); Fairlee v. Bloomingdale (67 How. 292; 14 Abb. [N.C.] 341; 38 Hun, 230). Upon principle and authority, we think that when a husband and wife assume to carry on a business as partners, and contract debts in the course of it, the wife cannot escape liability on the ground of coverture.
With regard to this statute, the Law Revision Commission has made the following comment (McKinney's Session Laws of NY, 1978, p 1628): "The purpose of an assumed or fictitious name statute is to provide a public source of information to prevent fraud and deceit in business practices by identifying the owners of a business operated under an assumed or fictitious name ( Sheraton Corp. of America v. Kingsford Packing Co., Inc., supra, 9 Cal. Law Rev. Comm. Report 635). It enables persons dealing with the business to know who will be responsible for liabilities incurred in the business ( Jenner v. Shope, 205 N.Y. 66, 40 N.Y. Jur., Names § 26 [p. 490]) to protect persons giving credit in reliance on such name ( Zimmerman v. Erhard, 83 N.Y. 74, Wood v. Erie Railroad Co., 72 N.Y. 196, Gay v. Seibold, 97 N.Y. 472, Donner v. Parker Credit Corp. [N.J.] 76 A.2d 277, 42 A.L.R.2d 516, 522-3)". The defendant's principal contention seems to be that plaintiff's letterhead is misleading.
(See Kram v. Shyev, 57 Misc. Rep. 112.) It is held in Black v. New York Life Ins. Co. ( 70 Misc. Rep. 532) that the section works no forfeiture or disability, and the legal standing of one ignoring it remains unchanged, and that the statute contains no provisions to make its prohibition effective, and that the right of a person to do business under a certain name will not be made a vice, nor will a prohibition of its use work a disability by implication. It is further held in Zimmerman v. Erhard ( 83 N.Y. 74) that the provision, as contained in chapter 281 of the Laws of 1833, is highly penal and will not be extended. "It was intended to prevent the use of the name of a person not interested in a firm, and thus inducing a false credit to which it was not entitled."
— The conviction of appellant in the Federal Court at Waco and his sentence therefor was properly admitted in evidence by the court in the exercise of the court's discretion, and especially in view of the fact that the conviction was for a similar offense attempted to be committed by appellant, to wit: the extortion of money by fraudulent means, which was the issue in this case. Gulf, C. S. F. Ry. Co. v. Gibson, 42 Texas Civ. App. 306[ 42 Tex. Civ. App. 306]; 1 Greenleaf on Evidence (16 ed.), sec. 461; Great Western T. P. Co. v. Loomis, 88 Am. Dec., 311, and authorities in note at the end of decision; Wilbur v. Flood, 93 Am. Dec., 203, and authorities in note at the end of decision; Carroll v. State, 32 Texas Crim. App., 431; La Beau v. People, 34 N.Y. 230; Carpenter v. Halsey, 57 N.Y. 658; Real v. People, 55 Barb., 578; Cannaday v. Krum, 83 N.Y. 74. FISHER, CHIEF JUSTICE. —
Seed v. Johnston, 63 App. Div. 340; Lorillard v. Clyde, 122 N.Y. 41; Walsh v. New York Kentucky Co., 88 App. Div. 477.) Where the contract is severable and the actual breach is only partial, and the party guilty of the breach wholly repudiates the contract and gives notice that he will not perform in advance of the time fixed by the contract for the performance of other covenants by him, I think the tendency of the authorities is, and the equitable and just rule should be, to give the innocent party an election whether to sue for the partial breach of the contract, treating it as continuing in force or for a total breach. ( Wharton Co. v. Winch, 140 N.Y. 287; McCleary v. Malcom Brewing Co., supra; Mersey Steel Iron Co. v. Naylor, Benzon Co., L.R. 9 App. Cas. 434; Johnson Thornton v. Allen Jemison, 78 Ala. 387; Richmond v. Dubuque S.C.R. Co., 40 Iowa 264; Mixer v. Williams, 17 Vt. 457; Frost v. Knight, L.R. 5 Ex. 322; 7 id. 111; Blackburn v. Reilly, 47 N.J. Law, 290. See, also, Zimmerman v. Erhard, 83 N.Y. 74; Nichols v. Scranton Steel Co., 137 id. 471; Ming v. Corbin, 142 id. 334; Cahen v. Platt, 69 id. 348.) If this be so of course it is immatrial whether this was a partial or total breach of the contract prior to the first action. I am of opinion that the recovery of the damages for the breaches of the contract prior to the first of March was not inconsistent with the continuance of the contract, and it is clear that the plaintiff did not intend thereby to terminate the contract.