Snaman v Maginn.

Contracts Fictitious Name-Registration Act of June 28, 1917, P. L. 615.

The purpose of the Act of June 28, 1917, P. L. 615, was to protect the public from the arts of designing persons, by affording means of ascertaining not only who compose a concern acting under a name otherwise than that of a natural person, but also whether or not the person or persons interested in such a concern are responsible for their obligations. The Act does not declare that "the penalty expressed was intended to be exclusive" nor is there any language used from which such an intention can be implied.

A contract entered into by one who does business under an assumed or fictitious name, without first having registered under the Act of June 28, 1917, P. L. 615, is unenforceable and judgment entered for defendant.

Motions for New Trial and for Judgment Non Obstante Veredicto. No. 2164 April Term, 1919. C. P. Allegheny County.

A. Seder and J. M. Redden, for plaintiff.

Frank C. McGirr, for defendant.

Before SWEARINGen, Carpenter and KLINE, JJ.

SWEARINGEN, J., April 26, 1920.-E. U. Snaman was a real estate broker in the City of Pittsburgh, trading as "Snaman Realty Company." He brought this action to recover compensation alleged to be due him by reason of a contract with the defendant for affecting a lease of the latter's property. The plaintiff claimed $2,100; and defendant admitted that he owed $1,000. Judgment was taken for the amount admitted, which was paid, and the plaintiff elected to proceed for the balance. Thereafter the defendant filed a supplemental affidavit of defense in which he alleged that plaintiff could not maintain this action bcause he had not complied with the provisions of the Act of June 28, 1917, P. L. 615, to which reference is hereinafter made. At the trial we followed a previous decision of this Court, instead of those rendered in two other districts, which were contrary to the decision in this district, and the cause went to the jury, and a verdict was rendered in favor of the plaintiff for $349.80. The defendant then entered these motions for judgment non obstante veredicto, and for a new trial.

The Act of 1917 expressly prohibits anyone from conducting any business "under an assumed or fictitious name, style or designation," unless he or they shall have first filed in the offices of the Secretary of the Commonwealth and of the Prothonotary of the proper county, in a book provided therefor, "a certificate, under oath, and signed by such person or persons, setting forth the real name or names and addresses of all the persons owning or interested in said business," and the name under which it will be conducted. A book is to be provided for this purpose by the Prothonotary at the expense of the county. It is further enacted that “any person carrying on or conducting any business in violation of this Act shall be guilty of a misdemeanor," and a maximum punishment of $500.00 fine and one year imprisonment is fixed.

The plaintiff was conducting a business, within the meaning of the Act. He was not doing so in his own name. He was operating as "Snaman Realty Company," which admittedly was not a corporation. He was a "licensed real estate broker, inter alia, for the sale and leasing of real estate" in Pennsylvania; this business of course included the making of agreements for his own compensation. The name under which he operated was either "assumed," which is defined as "supposed" or "pretended," or it was "fictitious," which is defined as "not real" or "false," or "not genuine;" or it was both assumed and fictitious. He admitted that he had never filed the certificates required by the Act quoted. Therefore, he was and still

Snaman v Maginn.

is conducting a business in violation of the Act of 1917 and "guilty of a misdemeanor," as declared in the third section thereof.

It will be observed that the contract under consideration is not, in itself, an illegal one, and therefore unenforceable by reason of its essence. The wrong lies in the plaintiff's own act. He entered into a contract with the defendant, which the law prohibited his making. So that the question for decision is: Will the Court aid the plaintiff in enforcing an agreement which it was unlawful for him to make?

The plaintiff contends that, notwithstanding the prohibition contained in the Act of 1917, this contract is enforceable, because the Act does not declare such contracts unenforceable, and "the penalty expressed was intended to be exclusive." For these propositions he cites the case of Automobile Securities Co. v Forepaugh, 68 P. L. J., 12, which sustains the contention of the plaintiff. He also relies upon cases in other States, having similar statutes. In Doyle v Shuttleworth, 83 N. Y. Sup., 609, the Court held that a

"plaintiff who has carried on business under an assumed firm name, in violation of the Pa. Code, Sec. 3633-b, and not having filed a certificate thereunder, may recover of a debtor for goods sold and delivered."

In Sagal, doing business under the name of New England Advertising Company v Fylar, 89 Conn., 293, it was held that a recovery might be had and that

"The aim of the statute was the protection of those who might deal with or give credit to the fictitious entity, and not to provide a means by which those who had received a benefit at the hands of the offender should be enabled to retain it, without making the compensation agreed upon between them."

In Stephen T. Rutkowski, doing business as Stephen T. Kelly v Bozza, 77 N. J. Law., 724, it was also held that a recovery might be had and that "The Act, as adopted in this State, being a substantial reproduction of the statutes of New York on the same subject, the interpretation of the Act by the Courts of that State will be presumed to have been accepted by the Legislature of this State as indicating its purpose and effect."

While these statutes of the other States named differ somewhat from our own, yet they have the same general purpose; and the decisions quoted do undoubtedly sustain the arguments submitted by the plaintiff. But, is the law of Pennsylvania the same as declared in those authorities?

The defendant contends that the statements made by the Court in the Forepaugh opinion, relative to the Act, were obiter dicta, the case having been decided upon other grounds. He also cites two other cases, which hold that such contracts are unenforceable, viz.: Sykes Department Store v P. R. R., 67 P. L. J., 517 (Common Pleas of Cameron County), and Codorus Planing Mill Co. v Horn, 68 P. L. J., 26 (Common Pleas of York County).

There is no magic in the words "unlawful" or "unenforceable." If a statute forbids the doing of an act as contrary to the policy of the state, it is just as illegal to do the thing prohibited as if it had been expressly declared "unlawful." Hence the proposition is not persuasive, that, because the Act of 1917 does not "say that contracts of the prohibited character shall be unenforceable," they may be enforced. "A penalty implies a prohibition though there are no prohibitory words in the statute:" Swyers v McMahon, 71 Sup. Ct., 142. The purpose of this Act of 1917 was to protect the public from the arts of designing persons, by affording means of ascertaining not only who compose a concern acting under a name otherwise than that of a natural person, but also whether or not the person or persons interested in such a concern are responsible for their obligations.. The Act does not declare that "the penalty expressed was intended to be exclusive" nor is there any language used from which such an intention can be

Snaman v Maginn.

implied. When the Legislature declared the failure to register to be criminal and provided penalties, is it not more likely that the intention was to prevent violators from enforcing the very contracts, whereby they defied the law, than that the penalties of the statute were intended to be exclusive?

There is no distinction, so far as we can perceive, between the situation of persons, who violate this Act of 1917, and that of real estate brokers, who are subject to a penalty of $500, for failure to secure a license. The question of their ability to enforce contracts, notwithstanding their failure to secure a license, was before the Supreme Court in Johnston v Hulings, 103 Pa., page 498, and it was held that the broker could not succeed. The plaintiff sued upon what he termed a special contract for compensation in effecting the sale of oil lands. The Court, having stated that there was no doubt the plaintiff was a real estate broker, proceeded:

"The result follows that Johnston, in the transaction in hand, stands in the position of a real estate broker who seeks to enforce a contract which, under the statute, he had no right to make, and by the making of which he subjected himself to the penalty imposed by that statute. But a contract such as this, opposed as it is alike to good morals and public policy, cannot be enforced. That has been ruled times without number. The case is almost identical with that of Holt v Green, 23 P. F. S. 198. That, like this, was an action by a broker to recover his commissions and there, as here, it appeared on cross-examination that he had no license. The only difference between the two cases is, that in the one cited the demand was for commissions quantum meruit, and in the case in hand it is on a special contract. This however may be regarded as a distinction without a difference, for we believe no one will contend that the statute may be avoided by the introduction of a special contract for commissions."

From the above and other authorities of like kind, it seems plain that the law of Pennsylvania upon the subject under consideration is different from that of the other States mentioned. If the question raised here were one of first impression, it might be held that a recovery could be had by the plaintiff. But, we regard the foregoing decisions of our Appellate Courts as conclusive against the plaintiff's contention. Hence we hold that the aid of this Court cannot be invoked in enforcing this contract, and that judgment must be entered in favor of the defendant.

Craighill et al. v Hoff.

Appeals County to Common Pleas Fictitious Name-Judgment-Act of June 28, 1917.

An appeal from the County to the Common Pleas Court was allowed where the defense set up in the County Court was, that the plaintiff was carrying on business under an asumed and fictitious name and had not registered as required by the Act of June 26, 1917. This was a good defense.

Sur Petition of Defendant for Leave to Appeal from the County Court. No. 1221 April Term, 1920. C. P. Allegheny County.

Alfred S. Miller, for plaintiff.
W. J. Connelly, for defendant

SHAFER, P. J., May 5, 1920.-The defense set up in the County Court was, in part at least, that the plaintiff was carrying on business under an assumed and fictitious name and had not registered as required by the Act of June

Craighill et al. v Hoff.

26, 1917 and the error which he contends was committed by the County Court, was in refusing the point for binding instructions on that ground. Whether such failure to register is a defense available to a defendant who has received value upon an executed contract, is a question which has not yet been passed upon by any of the appellate courts of this Commonwealth and in view of the gross injustice which will no doubt frequently be inflicted upon unwitting violators of the law until this requirement becomes generally known and still more in view of the interpretation of similar acts by the courts of New York, New Jersey, Connecticut and other states, we have hesitated to hold that failure to register is, under such circumstances, a good defense. A number of similar cases have been presented to this court and upon such consultation as could be had under the circumstances, it was determined that notwithstanding the considerations just mentioned, the defense should be held to be good, in view of the decisions of the Supreme Court upon the law relating to Real Estate Broker's Licenses and other similar cases, and upon that consultation an opinion was recently filed by Judge Swearingen in the case of Snaman & Company v Maginn, 68 P. L. J., 385.

The rule is therefore made absolute and an appeal allowed.

Commonwealth ex rel. Mehrenberg v Mehrenberg.

Habeas Corpus-County and Common Pleas Courts―Jurisdictionnance- -Act of March 19, 1915, P. L. 5.

-Mainte

The Act of March 19, 1915, P. L. 5, provides, that the County Court shall have jurisdiction in all proceedings for the custody of children where the court has acquired jurisdiction in matters relating to their maintenance, so that the Common Pleas Court has no jurisdiction to change the disposition of a child made by the County Court.

Habeas Corpus. No. 1190 April Term, 1920. C. P. Allegheny County.
R. P. & M. R. Marshall, for plaintiff.
John H. Lauer, for defendant.

SHAFER, P. J., April 21, 1920.--The child in question in this case was given into the custody of the father by the County Court, and this we understand was done in, or connection with a proceeding in which the maintenance of the child was in question.

The Act of March 19, 1915, P. L. 5, provides, that the County Court shall have jurisdiction in all proceedings for the custody of children where the court has acquired jurisdiction in matters relating to their maintenance, For this reason we are of opinion that this court has no jurisdiction to change the disposition of the child, made by the County Court. We have no doubt that the matters complained of in the petition as to the custody of the child and its mother having an opportunity to see it, will be properly disposed of if application is made to the County Court. The child is therefore remanded to the custody of the defendant.

Commonwealth ex rel. v Lewis.

Habeas Corpus-Extradition-Evidence as to Identity-Record.

A writ of habeas corpus was refused where the relator denied his identity or that he was a fugitive from justice. It was held to be no concern of the court as to the motive that inspired the institution of the charges upon the faith of which extradition and its warrant were based.

Petition for Writ of Habeas Corpus. No. 643 July Term, 1920. C. P. Allegheny County.

Warren H. Van Kirk, for plaintiff

Charles A. O'Brien, for defendant.

COHEN, J., May 26, 1920.—The relator denies his identity as the person named in the writ or that he is a fugitive from justice, both of which facts are legal presumptions arising on the face of the extradition decree and its accompanying warrant, as determined by an abundance of authority. We accorded him, however, the benefit of every doubt by requiring respondent to produce evidence of identity, which was accordingly done, and the relator was absolutely identified. The relator presented no competent evidence whatsoever to rebut these presumptions; in fact, no evidence was submitted by him save that of his own insistent denial as to identity and as to his being a fugitive from justice. He was afforded ample opportunity to show the illegality of the extradition proceedings and that he was not a fugitive from justice.

We are not concerned as to the motive that inspired the institution of the charges upon the faith of which this extradition and its warrant are based. True it is, the amount involved in the charge is trivial; but that fact cannot control, especially in view of the further fact that relator is charged with the same offense by New York State authorities, now in the hands of local authorities. We are also confronted with the information that the relator has just completed a sentence of one year for a similar offense, imposed by the Court of Quarter Sessions of this County. These latter facts, while not directly pertinent, are persuasive.

It is unnecessary, though frequently resorted to, to recite the array of federal, state, and county decisions on the subject of extradition establishing the fact that the two questions upon which the relator's rights are to be adjudicated herein are his identity and the question as to whether he is or not a fugitive from justice. I cite, however, the elaborate opinion by Ray, P. J., in the case of Pennsylvania ex rel. Fileon v Weimer, Sheriff, 65 C. C. Reports, 801, and the masterly presentation of the whole law pertaining to extradition under the Federal Court, the Acts of Congress and our own state legislation, as set forth in Commonwealth ex rel., appellant v Superintendent of Philadelphia County Prison, 220 Pa., 401. These citations sufficiently expound the whole law which governs in the disposition of this writ.

It is therefore ordered that Warden Lewis, the respondent, deliver the prisoner, the relator, into the custody of the officer designated in the requisition and warrant as the agent of the State of Massachusetts to receive him, and for so doing this will be his authority.