Schroeder v. Turner

Alvey, C. J., delivered the opinion of the Court.- It does not appear upon what, ground the Court below quashed the attachment; but from the evidence in the record it is made quite clear that there was, in fact, no partnership existing, at the date of the notes sued on, between Joseph E. Herbert and John Dohme, and that the plaintiff did not deal with Herbert as representing' a. partnership ; and, therefore, it could not have been upon the ground that Dohme was not joined as a party to the action, that the attachment was quashed. The note's sued upon were dated the'20th of Nov., 1884, and the 16th of Dec., 1884, payable four and six months-after date, signed by Joseph E. Herbert as Herbert & Co., and which notes were indorsed on the back by, and with the name simply of, Mrs. Ella Herbert, sbe being the wife-of Joseph E. Herbert, the maker of the notes. It is conceded that at the time the notes were made and before they were delivered to the payee, they were indorsed by Mrs. Herbert, and therefore she is to be treated as a joint maker of the notes, within the principle of Ives vs. Bosley, 35 Md., 262. It is contended, however, that because it is alleged in the affidavit for the attachment, and in the declaration filed, that Joseph E. Herbert and Ella his wife were indebted to the plaintiff, and as evidence of such indebted [509] ness Hie plaintiff has exhibited the promissory notes, signed “Herbert & Co.,” therefore there is a fatal variance between the averment of indebtedness, as set out in the affidavit and declaration, and the evidence of the indebtedness exhibited; namely, the notes signed “Herbert & Co.,” with the indorsement of the name of the wife on the back. But we do not think that this objection is tenable, upon any sound or substantial principle. In the absence of statutory prohibition, an individual may do business under the name and style of a firm; but when he is sued upon a note signed by such trade name or style, he must be declared against by his proper Christian and surname. 1 Chill. PI. (16 ed.) 211, and note (g). The abbreviation “& Co.,” added to the name Herbert, does not necessarily give rise to the presumption of the existence of a partnership (Robinson vs. Magarity, 28 Ill., 423 ; Brennan vs. Pardridge, (Sup. Ct. of Mich.,) 11 West. Rep., 542) ; and the notes, though signed in what would appear to be a partnership name, are shown to be, in fact, the proper notes of Joseph E. Herbert, with his wife as joint maker ; and as such they are declared on by the plaintiff. If, in the counts upon the notes, it were supposed that the notes are not accurately described, the declaration contains the common money counts, under which the notes could be given in evidence. Lee vs. Tinges, 1 Md., 215 ; Penn vs. Flack & Cooley, 3 G. & J., 369. The defendants are non-residents, and the action is brought under the provision of the Act of 1812, ch. 210, construed in connection with section 2 of Article 10 of the Code, which latter provision gives the right to proceed by attachment against every person liable to be sued who doth not reside in this State. We are of opinion that the motion to quash should have been overruled ; and we must therefore reverse the judgment of the Court below, and remand the cause that further [510] proceedings may be taken therein according to regular course. (Decided 15th March, 1888.) Judgment reversed, and cause remanded.