Denlinger v. Hutchinson
This text of 613 P.2d 76 (Denlinger v. Hutchinson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Plaintiffs obtained a judgment against defendant in this contract action after a jury trial; defendant appeals on the sole ground that the trial court erred in denying his motion for a directed verdict. He contends that because plaintiffs alleged that they were doing business under an assumed business name they were precluded by ORS 648.0901 from maintaining this action unless they alleged and proved they have registered the assumed business name as provided for in ORS 648.010.2 We conclude that defendant’s motion, [728]*728and his appeal from the denial thereof, present a nonissue, and affirm.
The contract which is the subject of this litigation was signed by plaintiff Klasnick as an individual, as buyer, and the defendant, as seller. The record indicates that the subsequent oral modification of that agreement was made between the same parties; no assumed name was involved. The complaint in this proceeding was brought in the name of the two plaintiffs as individuals. If nothing further appeared in the record, there would be no occasion to refer to ORS 648.090. For unexplained reasons, plaintiffs alleged in their complaint that they were partners doing business as "Oregon Mountain Wood;” assuming that allegation to be material, it was necessary to allege that "they had registered the assumed business name as provided for in ORS 648.010” as required by ORS 648.090. They did not do so, and in fact that was not the case.
Defendant filed a plea in abatement in which he alleged that the assumed business name registration for the name "Oregon Mountain Wood” stated that plaintiff Denlinger and one Neal J. Kievan were the parties in interest, and prayed for an order abating plaintiffs’ action until such time as all necessary [729]*729parties were joined as plaintiffs or defendants. Attached to the plea was a copy of the certificate of registration with the Department of Commerce, Corporation Division of the state. In response to the plea in abatement, plaintiffs admitted that as of the filing of the plea in abatement the allegations thereof were true, but that since then Neal J. Kievan had withdrawn his name as a party in interest in the assumed business name registration and, therefore, the plea in abatement should be denied. Attached to the answer was a copy of the withdrawal attached to a certificate of the corporation commissioner. The trial court then denied the plea in abatement.
As the record stands, there is a certificate of registration of an assumed business name in which the only party in interest is the plaintiff Denlinger; the contract on which the complaint is based was executed only by plaintiff Klasnik as an individual and by the defendant. We conclude that on this record the allegation that the plaintiffs were doing business as "Oregon Mountain Wood” was immaterial to plaintiffs’ cause of action, or their right to maintain the action; as such, it was surplusage.
However, if it was a material allegation, as the concurring opinion apparently concludes, the record does not show that the two plaintiffs were parties in interest in the assumed business name, "Oregon Mountain Wood,” or that defendant waived that issue, which was fairly raised in his plea in abatement. On the record as it then stood he contended correctly that a necessary party had not been joined. After his plea was denied, defendant’s only opportunity to preserve the issue was to deny the allegation in his answer, which he did; the only occasion defendant had to raise the question again was at the close of the plaintiff’s case, which he did.
If the contract with the defendant were signed in the name of "Oregon Mountain Wood,” or if the lawsuit were commenced in the names of the plaintiffs [730]*730dba "Oregon Mountain Wood,” and the complaint did not allege compliance with the statute, defendant could have raised the issue in his plea in abatement, but those facts are not this case. As a result, it was a question of proof which could not be raised by any preliminary plea such as a demurrer or plea in abatement. Accordingly, if the allegation were material, it cannot be said that the defendant waived the contention he now argues in this court.
However, as we have said, the allegation in plaintiffs’ complaint that they were doing business as "Oregon Mountain Wood” is irrelevant and immaterial. The purpose of the statutory requirement that persons doing business under an assumed name must register it and state the names of those using it in business is to inform those dealing with one or more persons using the assumed name with whom he is dealing. Here defendant did not deal with "Oregon Mountain Wood;” he dealt with Klasnick. The allegation in question amounted to nothing more than surplusage and should be ignored. The issue on the appeal, therefore, is a puff of smoke.
Affirmed.
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Cite This Page — Counsel Stack
613 P.2d 76, 46 Or. App. 725, 1980 Ore. App. LEXIS 2912, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denlinger-v-hutchinson-orctapp-1980.