Zimmerman v. . Erhard

83 N.Y. 74, 60 How. Pr. 163, 1880 N.Y. LEXIS 453

• Court: New York Court of Appeals
• Decided: December 1, 1880
• Status: Published

Opinion

Miller, J.

The defendants interpose, as a defense to the plaintiffs’, demand, that the plaintiffs were not copartners, and that the plaintiff John Zimmerman did business under the. name of “ J. Zimmerman & Co.;” that the words “ & Co.” do not represent any real party, and that the same are used in violation of chapter 281, Session Laws of 1833, which provides that “ no person shall transact business in the name of a partner not interested in his firm; and when the designation ' and Company,’ or Co.’ is used, it shall represent an actual partner or partners.” The defense rests upon the supposition that Mary Zimmerman, the wife of the plaintiff John Zimmerman, was intended by the words “ & Co.” and that no partnership can exist between husband and wife, and, therefore, the use of the words was illegal and a violation of the statute. That plaintiffs were husband and wife is only established by the testimony of John Zimmerman that the firm was composed of himself and his wife, Mary Zimmerman. Whether Mary was the wife of John Zimmerman at the time of the sale is not shown; nor is there any finding or request to find to that effect. But assuming the proof on this subject was sufficient-, we think the use of the words “ & Co.” for the name of the wife was not a violation of the statute cited.

The provision in question 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. (Wood v. Erie Ry. Co., 72 N. Y. 196, 198.) It does not apply to, and is not intended to include the use of a real name of an actual partner, even although such partner was under a disability at the time. The use, therefore, of the name of a feme covert, as one of a firm, where there was no intention to impose upon the public by obtaining undue credit, cannot be regarded as a violation of either the letter or the spirit of the statute cited. The name used in this ease was a real one, and the words “ & Co. ” were in no sense fictitious or unlawful within the meaning of the statute. Without considering the question whether a married woman can be a partner of her husband, it is quite obvious that such disability is not available to the defendant in this action, upon the ground set up in the defendant’s answer that the words “ & Co. ” did not represent a real party, and the answer referred to constitutes no defense to the plaintiffs’ demand.

The defense that another action was pending for the same cause of action is also without merit. The former case, for which a recovery had been had between the parties, was brought to recover the value of goods sold and delivered at a date prior to those for the recovery of the value of which this action is brought; and the proof showed- that they w’ere all sold upon a contract for a credit of four months. Under this state of facts each sale was separate and distinct, and a cause of action accrued when the time of credit expired and as the several amounts became due. The different sales did not constitute one entire and indivisible demand, and the plaintiffs could bring separate actions for each separate sale, or for all of them together, as they saw fit. The different demands were like several promissory notes or several distinct trespasses, and in the nature of separate and distinct transactions, for each of which a separate action might be brought. (Secor v. Sturgis, 16 N. Y. 548, and authorities there cited; Staples v. Goodrich, 21 Barb. 317.)

The rendering of an account containing all the items does not change the nature of the contract or evince that the transactions were not separate and distinct. The cases cited to sustain the rule that the account sued upon was entire and could not be split up so as to form the basis of separate causes of action, are only applicable where successive suits are brought for separate items of a current account or for separate installments becoming due under the same contract, and are not analogous to the facts presented in the case at bar.

There was no error, and the judgment should be affirmed.

All concur.

Judgment affirmed.