Johnson v. Englebertson

Plaintiffs are a copartnership. They are in the business of contracting. They filed this bill to enforce a lien against premises owned by defendants. The trial court gave them relief. Several questions are raised by way of defense. It appeared upon the cross-examination of one of the plaintiffs that he and his coplaintiff had been copartners for 10 years but had filed no certificate in compliance with section 6359, 2 Comp. Laws 1915. Defendants' counsel raises the question that no recovery *Page 519 can be had in this suit by reason of the noncompliance with that statute. The trial court was of the opinion that as the contract was made by one of the parties a recovery might be had under the holding of Rossello v. Trella, 206 Mich. 20. Section 6359 was amended in 1919 by adding the following provision: "Provided, however, The fact that a penalty is provided herein for noncompliance with the provisions of this act shall not be construed to avoid contracts, but any copartnership failing to file the certificate required by section one shall be prohibited from bringing any suit, action or proceeding in any of the courts of this State until after full compliance with the provisions of this act." Act No. 265, Pub. Acts 1919 (Comp. Laws Supp. 1922, § 6359). It is clear that the plaintiffs are, and were, copartners at the time the contract was made and the labor performed, and plaintiffs, as copartners, are now the owners of this claim. We think the statute applies and that the present suit must be dismissed. The case of Rossello v. Trella is easily distinguishable from the present one. In that case it was said of the contract: "No firm name is used and no mention is made of any firm or partnership anywhere in the instrument, their separate names being set out in the introductory clause where they are designated as the party of the second part." In this case the amended bill shows that they were copartners, and that they brought this suit as such, and it further shows that the defendants were indebted to the copartnership and that the work was done by the copartnership. The contract to do the work is included in the bill of complaint and shows that the contract was made with the copartnership, and was signed by all of the parties. The affidavits for the lien attached to the bill show that they were copartners, *Page 520 and that said firm furnished certain labor and materials for building, altering, improving, repairing, etc., the defendants' premises, and that said copartnership furnished the labor therefor. It will be observed, however, from the foregoing amendment, that plaintiffs' cause of action is not barred by this omission if they file their certificate as the law commands. Inasmuch as the case will likely come before the court again it will be well to notice some further questions raised. Defendants say the case was dismissed for want of progress, and, therefore, cannot be revived again. After it was dismissed the parties made a stipulation that the court might set aside his order of dismissal. Upon filing this stipulation the court set the order aside and the parties went to trial without objection. The statute (3 Comp. Laws 1915, § 12574) provides that the dismissal shall be without prejudice. We think the objection is without merit. Another question is raised that the contractor did not serve the notice required by 3 Comp. Laws 1915, § 14799. The trial court was of the opinion that this section of the statute did not apply to the contract in question because the contractor had the contract for doing only a portion of the work. We think the court was in error in this. The notice required by the statute is as essential when one has only a contract for a portion of the work as it would be if he had the entire contract. If this construction were to prevail the statutory provision would be of little force. But we agree with the court's conclusion that this defense could not be taken advantage of if not pleaded. It was a defense known to the defendants, and if they cared to rely on it they should have pleaded it in their answer. The decree of the trial court should be reversed, with costs to defendants. *Page 521 McDONALD, C.J., and MOORE and WIEST, JJ., Concurred with BIRD, J.