Hughes & Dier v. McClure

77 Pa. Super. 325, 1921 Pa. Super. LEXIS 262

• Court: Superior Court of Pennsylvania
• Decided: July 14, 1921
• Docket: Appeal, No. 128
• Status: Published

Opinion

Opinion by

Trexler, J.,

The plaintiffs in this case are Henry E. Hughes and Elder D. Dier, partners trading 'as Hughes and Dier. They bring suit against John B. McClure who puts in a defense to their action that the plaintiffs are doing business under an assumed or fictitious name, contrary to the provisions of the Act of Assembly June 28, 1917, P. L. 645. We have had a number of casés involving the construction of the act, but none exactly like this. In Moyer et al. v. Kennedy, 76 Pa. Superior Ct. 523, we had occasion to say “It may be argued that where the family names of all the partners appear the style or designation is not fictitious. Such conclusion seems to be predicated on the fact that the persons named in the style or firm name, although their indentity is not fully revealed, do actually exist, and the title is true as far as it goes. Whether this be so we need not decide.” The question there referred to is now squarely before us, and we all have come to the conclusion that it is not within the prohibition of the act. It may be argued to give full force to the act, every partnership name which does not disclose the persons composing it, is assumed or fictitious. The combination of names, “Hughes and Dier,” never existed before the creation of this partnership and therefore it may in a sense be said to be assumed. On the other hand both names represent persons actually in being, and furnish a means of identification. The act being a criminal act, we must only apply its provisions to such persons as are clearly covered by its terms.

The judgment is affirmed.