Security Finance Co. v. Hendry, 189 N.C. 549 (1925)

April 29, 1925 · Supreme Court of North Carolina
189 N.C. 549


(Filed 29 April, 1925.)

1. Trade Name — Assumed Names — Statutes — Registration — Actions— Police Powers.

While the violation of C. S., 3288, prohibiting carrying on a mercantile business under an assumed name without registration, is made a misdemeanor by C. S., 3291, a further provision is made by the Public Laws of 1919, eh. 2, that such violation shall not prevent a recovery by “said person or persons in any civil action,” etc., evidencing the intent of the legislature that the protection of C. S., 3288, as to creditors, should not extend to giving the courts the power to strike out an answer setting up a valid defense upon the admission that defendant had violated sec. 3288, and render judgment in favor of the plaintiff; and Held further, the courts will not lend their aid to extend the provisions of C. S., 3288, 3291, highly penal in their nature, and coming within the police powers of the State.

2. Same — Defenses—Fraud.

In an action upon his promissory notes the defendant alleged that the plaintiff held the notes sued on as the agent for the payee, who had procured them through fraud, sufficiently stated: Meld, the pleadings raised issuable matters for the determination of the jury.

*5503. Bills and Notes — Attorney and Client — Attorneys’ Fees — Statutes.

A provision incorporated in an instrument for the payment of money for counsel fees for collection, is not enforceable. C. S., 2983.

Appeal by defendant from Harding, J., at January Special Term, 1925, of MecicleNbueg.

Tbe plaintiff, a corporation, sued tbe defendant, an individual, trading under tbe style of “Baltimore Mercantile Company,” on six promissory notes. These notes are payable to Brenard Manufacturing Company, and plaintiff sues as bolder in due course. In each note is tbe stipulation: “In case of default in payment I agree to pay payee’s reasonable attorney fees.”

Tbe defendant admits tbe execution and delivery of these notes to tbe payee, but denies that plaintiff is a bolder in due course. Tbe defendant further says the notes were procured by fraud and deceit of tbe payee, and that tbe goods constituting tbe consideration of tbe notes were refused by him asi soon as be discovered tbe fraud and deceit, and that plaintiff is, in truth, tbe agent of tbe payee and not tbe owner of tbe notes.

Tbe defendant also admitted plaintiff’s allegation that, “tbe defendant was engaged in business under tbe firm or trade name of tbe ‘Baltimore Mercantile Company,’ and) that tbe defendant while thus trading failed to record bis said trade name in tbe office of tbe clerk of tbe Superior Court of Mecklenburg County, N. O., as >he was required so to do by law.”

Tbe plaintiff moved tbe court to strike out tbe defendant’s answer and for judgment by default final on tbe complaint, upon tbe defendant’s admission that be failed to comply with 0. S., 3288.

Tbe court rendered tbe following judgment:

“This cause coming on to be beard before bis Honor, W. E. Harding, judge presiding, and being beard upon motion of tbe plaintiff for judgment, for that tbe defendant having failed to comply with tbe law. relative to recording bis trade name; and to strike out answer and for judgment by default final. Tbe court finds tbe following facts: (1) That tbe defendant, Chas. M. • Hendry, is and was at tbe times mentioned in tbe complaint, a resident of Mecklenburg County, and was at and before tbe date of tbe execution of tbe notes sued on engaged in business in said county under tbe trade name of ‘Baltimore Mercantile Company.’ (2) That tbe defendant has not and never bad, complied with tbe law in regard to causing bis said trade name to be recorded in tbe office of tbe clerk of tbe Superior Court of said county. (3) That it is alleged in tbe complaint and admitted in tbe answer that tbe defendant bad so failed to record bis trade name ‘as required by law.’ *551(4) That as a result of the failure of the defendant to file his trade namei the plaintiff in this action brought suit on said notes against a corporation by the name of the Baltimore Mercantile Company, and was compelled in said action to take a nonsuit and suffered costs and expense, whereas if the defendant had complied with the law recording his trade name this suit and mistake would not have occurred. That upon these facts and admissions the court is of the opinion that the defendant haying violated the law by failing to file said trade name to be recorded, and having violated the penal laws of the State by this omission, is not entitled to defend the present action.

“And it further appearing that the summons in this action has been personally served upon the defendant; that a duly verified complaint setting forth the breach of an express contract to pay a definite sum of money upon notes has been filed according to law, and the court being of the opinion that the answer should be struck out and that the plaintiff is entitled to judgment. .

“It is therefore upon motion of Thos. "W". Alexander, attorney for the plaintiff, that it' is hereby ordered, adjudged and decreed that the plaintiff have and recover judgment against the defendant in the sum of—

“$87.00 with interest thereon from 9 March, 1924, until paid at six per cent.

“$87.00 with interest thereon from 9 April, 1924, until paid at six per cent.

“$87.00 with interest thereon from 9 May, 1924, until paid at six per cent.

“$87.00 with interest thereon from 9 June, 1924, until paid at six per cent.

“$87.00 with interest thereon from 9 July, 1924, until paid at six per cent.

“$84.26 with interest thereon from 9 August, 1924, until paid at six per cent.

“And it further appearing that this action is to recover obligations upon which defendant agreed to pay a reasonable attorney’s fee for collection, and being an action by a bank for collection of notes purchased by it, and the court being of .the opinion that the sum of $50 is a reasonable charge: It is ordered and adjudged that the plaintiff recover of the defendant the additional sum of $50 with interest thereon from 12 January, 1925, being the first day of this term of court, at six per cent per annum until paid; that the defendant pay the costs of the action; that the action being upon notes that the same be marked ‘judgment’ by the clerk.”

*552The defendant appealed, assigning error in granting plaintiff’s motion to strike out the answer and in rendering judgment by default final, and in allowing attorneys’ fees.

Thos. W. Alexander for plaintiff.

J. Lawrence Jones for defendant.

Varser, J.

C. S., 3288, prohibits persons from carrying on business in this State “under assumed name, or under any designation, name or style other than the real name of the individual owning, conducting or transacting such business,” unless a certificate is filed by such person in the office of the clerk of the Superior Court, in the county where such business is carried on, setting forth the name under which such business is conducted or transacted, and the true or real full name of the persons conducting or transacting the same, with the home and postoffice address of such person; and punishment for the violation of this section is prescribed in C. S., 3291. As originally enacted, Public Laws 1913, ch. 77, sec. 4, made the person owning, carrying on or conducting or transacting business without complying with what is now C. S., 3288, guilty of a misdemeanor, and prescribed punishment. Public Laws 1919, ch. 2, added a proviso, however, to C. S., 3291: that the failure to comply with C. S., 3288, “shall not prevent a recovery by said person or persons in any civil action brought in any of the courts of this State.” This proviso was added in the light of the decision of this Court in Courtney v. Parker, 173 N. C., 479. Prior to this amendment this statute was commented upon in Fineman v. Faulkner, 174 N. C., p. 16. In Courtney v. Parker, supra, it was the plaintiff that had violated the foregoing statute by engaging in the prohibited transaction out of which the suit arose. In Fineman v. Faulkner, supra, the plaintiff had not violated any statute, but was suing the administrator of Mamie Faulkner, who was engaged in an illegal business, and the Court says: “In all the cases in which recovery has been denied, it will be found that either the consideration or the transaction was illegal, or the vendor participated in the illegal purposes of the purchaser.”

This statute was further considered by the Court in Jennette v. Coppersmith, 176 N. C., 82. In that case Courtney v. Parker, supra, was distinguished, and the plaintiffs allowed to recover without filing the certificate required by C. S., 3288, because the title of the plaintiffs’ firm, Jennett Bros., afforded a reasonable and sufficient guide to correct knowledge'of the individuals composing the firm, and, therefore, did not come clearly within the doctrine of “assumed” names; and in *553 Hines v. Norcott, 176 N. C., p. 130, tbe Court held that tbis statute did not apply, because tbe actiou did not arise out of tbe doing of an act forbidden by tbe statute.

Tbe foregoing were'decided by tbis Court prior to tbe enactment of chapter 2, Public Laws 1919. Tbis enactment added tbe proviso now appearing in C. S., 3291, and tbis proviso bad tbe effect to change tbe decision in Courtney v. Parker, supra, as to violations of C. S., 3288. Tbe legislative intent is clear, not only in tbe act itself, but tbe title, “An act to amend chapter 77, of tbe Public Laws of 1913, regulating tbe use of assumed names in partnerships, so as to permit recovery in actions brought, by a partnership which has failed to register.”

In Price v. Edwards, 178 N. C., 494, tbis statute again came under tbe consideration of tbe Court under tbe following circumstances: Tbe administrator of S. J. Edwards, together with J. H. Edwards, in bis individual capacity, instituted a proceeding for tbe final settlement of tbe estate of S. J. Edwards, deceased. S. J. Edwards, at tbe time of bis death, was conducting a mercantile business in Stanly County in tbe name of “S. J. Edwards.” J. H. Edwards claimed a partner in tbis business and to own a one-tbird interest in tbe same. Other distributees of tbe deceased denied tbis partnership and pleaded chapter 77, Public Laws 1913 (C. S. 3288-3289-3291), in bar of J. H. Edwards’ right to recover as such partner, and in answer to appropriate issues tbe jury found that J. H. Edwards was a partner to tbe extent of one-tbird interest in tbe business conducted by S. J. Edwards, and that no certificate bad been filed with tbe clerk of tbe Superior Court, .as required by law. Tbe Court said tbe statute did not apply, since “no question arises as to tbe rights of third persons.” “No good reason can be assigned, or, at least, none has been suggested, why such a statute should defeat tbe recovery of bis share by tbe living partner, where no third person is involved, but only tbe partners themselves in relation to transactions wholly inter se. Tbe intent and object of tbe statute was to require notice to be given to tbe business world of tbe facts required to be set out in tbe certificate, to tbe end that people dealing with a firm may be fully informed as to its membership and know with whom they are trading, and what is tbe character of tbe firm and tbe reliability and responsibility of those composing it.”

As stated in Courtney v. Parker, supra, and reaffirmed in Price v. Edwards, supra, tbis statute is “a police regulation to protect tbe general public, as heretofore stated, from fraud and imposition.”

Tbe courts will not lend their aid to extend a highly penal statute, although it is within tbe police power, unless tbe case comes within tbe letter of tbe law, and, also, within its meaning and palpable design. It is just as clearly tbe policy of tbe law that it will not lend its aid in *554enforcing a claim founded on its own violation. Price v. Edwards, supra; Marshall v. Dicks, 175 N. C., 41; McNeill v. R. R., 135 N. C., 733; Vinegar Co. v. Hawn, 149 N. C., 357.

In Jenette v. Coppersmith, supra, the Court, reviewing Courtney v. Parker, supra, after referring to tbe highly penal character of this statute, says: “It should not be extended or held to include cases that do not come clearly within its provision.”

The legislative intent must be the controlling spirit in the construction and application of statutes of this nature. Niemeyer v. Wright, 75 Va., 239; Harris v. Runnels, 12 How. (U. S.), 79. In the latter case, the Court, in speaking of a statute containing a prohibition and a penalty, says that- when prohibition and penalty included in the statute “makes the act which it punishes unlawful, and that this may be implied from a penalty without a prohibition. But it does not follow that‘the unlawfulness of the act was meant by the Legislature to avoid a contract made in contravention of it. When the statute is silent, and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void. It is not necessary, however, that the reverse of that should be expressed in terms to exempt a contract from the rule.”

In the instant case it is clear by express enactment that the Legislature intended by adding the proviso that the punishment should be confined to the fine or imprisonment set out in C. S. 3291, but that contracts made by persons carrying on or conducting or transacting the business in violation of this statute should not be void.

In Real Estate Co. v. Sasser, 179 N. C., 498, the Court considers this statute, Public Laws 1913, ch. 77, together with chapter 2, Public Laws 1919, now contained in C. S., 3288-3291, inclusive, and allows the plaintiff to recover, although he was carrying on a real estate business, and he admitted direct violation of this statute. The Court says that this amendment (chapter 2, Public Laws 1919) applied to pending actions and to transactions prior to its enactment in the absence of a saving clause. 36 Cyc., 1164. And, since it is a mere police regulation, it may be abolished at any time and no vested rights are required under it.

In Miller v. Howell, 184 N. C., 119, the Court denied the right to the plaintiff to recover on notes given in violation of C. S., 4742-4743-4744-4749. The Court discusses the rule very fully, with many authorities, and applies Courtney v. Parker, supra; Ober v. Katzenstein, 160 N. C., 439; Lloyd v. R. R., 151 N. C., 536; Edwards v. Goldsboro, 141 N. C., 60; Puckett v. Alexander, 102 N. C., 95; Warden v. Plummer, 49 N. C., 524; Sharp v. Farmer, 20 N. C., 255, as follows: “It is well established that no recovery can be had on a contract forbidden by the positive law of the State, and the principle prevails, as a general rule, whether it is forbidden in express terms or by implication arising from *555the fact, that the transaction in question has been made an indictable offense or subjected to the imposition of a penalty.”

In Miller v. Howell, supra, as well as the cited case from which this rule is deduced, the actor was asserting a right to recover out of a transaction expressly prohibited and penalized by the statute, which contained no provision limiting its effect to the punishment or penalty prescribed.

In Phosphate Co. v. Johnson, 188 N. C., 419, Mr. Justice Connor clearly reviews the authorities on this question and reaffirms Courtney v. Parker, supra, but notes that chapter 2, Public Laws 1919, takes out of chapter 77, Public Laws 1913, the bar to a recovery in a civil action on a contract growing out of transaction prohibited thereby.

The plaintiff in the instant case asserts that this amendment, chapter 2, Public Laws 1919, does not, now, affect plaintiffs or actors, but that it applies, in all its rigor, to defendants, or persons against whom liability is asserted.

Plaintiff further asserts that, whenever it appears that the defendant has violated this statute, the trial court has the power to strike out its answer and to render judgment by default against him because of his admitted no compliance therewith.

The defendant in the instant case filed an answer raising issues properly triable by jury, if the court below was in error in striking out his answer. The power of the court below to strike out the answer is vigorously challenged in defendant’s exceptions.

The exercise of the power to strike out pleadings in cases where no statute authorizes the striking out has not frequently arisen in the courts of this State. That the power of the courts to strike out pleadings does exist in certain cases admits now of no doubt. Crump v. Thomas, 89 N. C., 241. In that case the amended answer was stricken out because it was in direct^ violation of the leave given to file an amended answer. The Court was protecting its own order.

In Lumber Co. v. Cottingham, 168 N. C., 544, the Court holds that the Superior Courts, as did the former Equity Courts, have, now, full power to refuse to allow a party in contempt to oppose relief sought by the plaintiff by contradicting the allegations of the bill or bring forward any defense. It appears that Chancellor Kent recognized this rule which formerly obtained in the English Chancery. Manning v. Manning, 1 Johns Ch., 527; Walker v. Walker, 82 N. Y., 260; Brinkley v. Brinkley, 47 N. Y., 41; Saylor v. Mockbie, 9 Iowa, 209; O’Connor v. Ry. Co., 75 Ia., 617; Kaskell v. Sullivan, 31 Mo., 435.

In 31 Cyc., 632, we find that “pleadings are frequently stricken out for disobedience to orders of court.” This power is exercised in practically all the States. See note 3 Cyc., 632.

*556This power, so clearly established in this State, yet so infrequently exercised, is an attribute of the equity jurisdiction, based on the contemptuous conduct of a party toward the Court and its administration, and does not include the instant case. If defendant’s admission invoked the rule in Courtney v. Parker, supra, it was necessary for the answer to remain a part of the record in order to support the judgment. The answer was filed within the statutory time allowed, and he was not in contempt; he has a right to be heard and to interpose all defenses, legal or equitable, unless he has forfeited this right by some act in this action, which is tantamount to his refusal to accept or use the right of “due process.”

In O'Neil v. Thomas Day Co., 152 Cal., 357, the Court distinguishes, even in punishing for contempt in civil cases, thus: “The plaintiff is always a voluntary actor before a court. A defendant is always under compulsion.”

In American Wireless v. Superior Court, 153 Cal., 533, the answer was stricken from the files on the ground that defendant, a 'foreign corporation, had “failed and neglected” to comply with a California statute requiring foreign corporations doing business in that State to file a certified copy of its articles of incorporation with the Secretary of State, and this statute further provided that foreign corporations failing to comply with this requirement could not maintain any suit or action in any of the courts of the State. An order striking out the answer under this statute was reversed, the Court saying that such a statute “will not be construed to extend beyond the plain meaning of its terms considered in connection with its object and purpose.”

The object of C. S., 3288, is to protect creditors and third persons dealing with parties trading under “assumed names” from fraud and imposition; to enable them to know the real names of those with whom they deal. This object cannot be accomplished by taking away the right to defend an action. This would allow any person not only to sue, but to recover, ad libitum, when the legislative intent is now limited to the punishment prescribed in C. S., 3291.

The same rule is announced in Weeks v. Gold Mining Co., 73 Cal., 599; Benefit Order v. Jones, 20 Tex. Civil Apps. Rep., p. 73.

The defendant is entitled to the benefits of “due process of law.” “The essential elements of due process of law are notice and opportunity to defend.” Phillips v. Telegraph Co., 130 N. C., p. 522; Simon v. Craft, 182 U. S., 427, 436. A contumacious defendant loses the right to claim the protection of “due process” when he contemptuously refuses this right and willfully refuses to obey rules of the forum.

In Grocery Co. v. Bails, 177 N. C., 298, it was held that a violation of a similar statute, C. S., 3292, did not affect a married woman’s right to her personal property exemptions.

*557 Weld v. Shop Co., 147 N. C., 589, does not allow Rev. 2118, now C. S., 3292, to apply, even though violated, if creditor knew the truth when he sold the goods.

Therefore, we must conclude that the legislative intent, as well as its meaning and spirit, will not permit the striking out of the defendant’s answer, or a judgment against him, because of his admitted violation of 0. S., 3288.

In Trust Co. v. Murphy, ante, 479, Mr. Justice Cownor, in discussing the effect of C. S., 3288, says: “This statute manifestly-is for the protection of creditors of persons who fail to comply with its provisions, or of others who do business with them. The consequences of a violation of the statute are prescribed by C. S., 3291. They seem to be limited to punishment as a misdemeanor, for it is expressly provided that failure to comply with C. S., 3288 shal,l not prevent a recovery in a civil action by the person who shall violate the statute.” It would be anomalous to allow the violator to recover on the ground that the transaction is valid, when he is plaintiff, but allow others, when he is a defendant, to recover of him on the ground that it is void.

Since the question of the validity of the stipulation in the notes sued on as to payment of “attorney fees” may arise at the next trial, we will now consider it:

We recognize that, in several States, these stipulations are upheld. Bank v. Yarborough, 120 S. C., 385, both in law and equity cases; Williams v. Flowers, 90 Ala., 136; Jones v. Crawford, 107 Ga., 318; Bowie v. Hall, 69 Md., 433; 1 L. R. A., 546 (note); Bank v. Fuqua, 11 Mont., 285; Peyser v. Cole, 11 Oregon, 39; Bank v. Badham, 86 S. C., 170; Morrill v. Hoyt, 83 Tex., 59; 8 C. J., 148; 3 R. C. L., 895.

Such stipulations are held, in many States, to impair the negotiability of the notes containing them. Others hold-otherwise. See note collecting the authorities on both views in 125 Am. St. Rep., 207-212. North Carolina settled this', by statute, C. S., 2983, both as to the effect on negotiability and as to validity of the stipulation itself.

This statute (O. S., 2983) provides that “a provision incorporated in the instrument to pay counsel fees for collection is not enforceable.” Although the note is executed and payable in another State, such a provision must stand the test of validity here. Lex fori governs. Bank v. Land Co., 128 N. C., 193. Such stipulations were discussed in Tinsley v. Hoskins, 111 N. C., 340; Bullock v. Taylor, 39 Mich., 137. Tinsley v. Hoskins, supra, has been affirmed in Briscoe v. Norris, 112 N. C., 677; Williams v. Rich, 117 N. C., 240; Turner v. Boger, 126 N. C., 302; Bank v. Land Co., 128 N. C., 195; Ragan v. Ragan, 186 N. C., 461. In Ragan v. Ragan, supra, Mr. Justice, Clarkson *558ably discusses tbis doctrine and arrays the authorities in this State, and clearly sets forth the views in North Carolina in its various phases. In Tinsley v. Hoskins, supra, our Court declared that: “Such a provision is a stipulation for a penalty or forfeiture, tends to the oppression of the debtor and to encourage litigation, is a cover for usury, is without any valid consideration to support it, contrary to public policy and void.” Bank v. Sevier, 14 Fed., 662; Meyer v. Hart, 40 Mich., 517; Toole v. Stephen, 4 Leigh, 581; Boozer v. Anderson, 42 Ark., 167; Shelton v. Gill, 11 Ohio, 417; Martin v. Trustees, 13 Ohio, 250; Dow v. Updike, 11 Neb., 95.

Unless authorized by statute, the long-standing rule that they are invalid must prevail. Both the statute, C. S., 2983, and the decisions of our Court establish and assert their invalidity.

In order that a trial may be had on the issues raised by the pleadings, let the judgment appealed from be