Estate of Andrew G. Miller, dec'd.

66

trustee, and in clear and unmistakable words declares that it is his intention that no part of the principal sum shall at any time be paid to the petitioner. (West's Estate, 214 Pa. 35.) We find that the testator has not clearly expressed" an intention that "the remaindermen are not to take from him," but rather, as Mr. Justice Moschzisker declared in his dissenting opinion in Lauer v. Hoffman, "shall descend from me and go to." The prohibition to pay any part of the principal to the petitioner lends strength to the finding the reverse of an intention "that the remaindermen are not to take from him," and therefore an inheritable succession did not attach to the beneficiary for life.

Rule is discharged. Costs to be paid by the petitioner.

Court of Quarter Sessions of Lancaster County

Commonwealth v. Marquette Fembleaux.

Larceny as employee - Three acts of embezzlement proved under one

count-Evidence.

It is within the discretion of the court to try a defendant on two indictments at the same time, but in any event a defendant so tried would have no ground of complaint where the testimony on each indictment was different and distinct and he was acquitted on one indictment.

Under indictment for larceny as employee charging the theft of a stated sum at about a given date, a defendant may be convicted on evidence showing three distinct embezzlements of the same kind about the time given amounting to less than the sum named.

In such a case it was proper to admit evidence of all three embezzlements to show that each act was part of a system and that there was not a mistake in a single instance.

Indictment for larceny by employee. Conviction.

new trial.

John E. Malone, for rule.

Rule for a

John M. Groff and S. V. Hosterman, Asst. Dist. Atty., contra.

January 15, 1921. Opinion by HASSLER, J.

The defendant was tried and convicted on an indictment charging him with larceny by employee. He was tried at the same time on an indictment charging felonious entry, but was acquitted. Objection was made by him, before the jury was sworn, to his trial on both indictments at the same time, but as he was acquitted on the one charging felonious entry, and the testimony on each indictment was different and distinct, he was not prejudiced in being tried on both together. It is, however, within the discretion of the Court to try a defendant on two indictments at the same time, and being satisfied that no harm was done to this defendant by exercising our discretion in the way we did, compelling him to be tried on both indictments together, there is no merit in the reason for a new trial which raises this question.

The indictment upon which the defendant was convicted charges him with larceny as employee. It charges that he, as an employee, re

Commonwealth v. Marquette Fembleaux.

ceived and came into possession of money to the amount of six hundred dollars belonging to his employer, which he did fraudulently embezzle and feloniously steal. At the trial it was proven by the Commonwealth that the defendant had charge of a store in the City of Lancaster belonging to the Rainbow Waist Shop, Incorporated; that on at least three different occasions he instructed sales girls to mark a waist returned, when they sold one, and only charge up the difference between the one sold and the one returned. No waists were returned at these times. The girls did this, and the defendant thus obtained some twenty dollars of which he did not make return, but fraudulently embezzled and feloniously stole. The defendant denied this testimony, but was convicted. We are asked to grant a new trial, first, because the embezzlement or larceny charged in the indictment was not proven, and, secondly, because there could not be three distinct embezzlements in a single count in an indictment.

The indictment charged the defendant with embezzlement and larceny of six hundred dollars on June 29, 1920, and before and afterwards. Proof that he had embezzled or feloniously stolen any part of six hundred dollars, at or about the time mentioned, would have justified his conviction. If the jury found that he had embezzled or stolen any one of the three amounts testified to by the three different sales girls, it was justified in finding a verdict of guilty. It was proper to admit the testimony of all three to show that the embezzlement or stealing was part of a system. If he had only given the instructions to a sales girl on one occasion, he might have satisfactorily explained it, as a mistake or misunderstanding, but when it was shown that he had given instructions to a number of sales girls, and that each act was part of a system, cleverly devised to conceal his embezzlement or larceny, it was not so susceptible of satisfactory explanation. It was, therefore, competent proof. That we added all three amounts and told the jury that there was proof that amount was embezzled, did not affect the case, for the amount was not so important as the fact that some amount was embezzled or stolen. The defendant did not object to the testimony of the three sales girls referred to. He did not object to that of Cecilia Morton, who testified to defendant's request that she mark a waist returned when she sold one, but she refused to do it. Nor did he object or except to the charge of the Court. He is, therefore, in no position to raise these questions now. We do not think, however, that any error was committed, and are of the opinion that the defendant was properly convicted by the jury. The rule for a new trial is, therefore, discharged.

Q. S. OPINIONS.

Saturday, May 28, 1921.

By JUDGE LANDIS.

In re Incorporation of Florin Borough. Exceptions to report of viewers. Sixth exception sustained and incorporation refused.

In re Annexation to Mount Joy Borough. Ordinance declared null and void.

Superior Court of Pennsylvania

Moyer et al. v. Kennedy.

Contracts-Fictitious names-Assumpsit - Pleading-Act of June 28, 1917, P. L. 645.

The plaintiffs, doing business under the firm name of Moyer & Carpenter, brought an action against the defendant to recover the amount of a book account for labor and materials furnished to the defendant from time to time. The defendant, waiving a defense on the merits, set up as a defense at law the Act of June 28, 1917, P. L. 645, which requires all partnerships to be registered. It was admitted that the firm included another named "Miller" as a third partner and that the plaintiffs had not registered. Held: That plaintiffs could not recover.

The purpose of the Act of June 28, 1917, P. L. 645, is very evident. It is designed to prevent fraud in business transactions. It affords a method which enables anyone to readily ascertain with whom he is dealing. It furnishes a means of ascertaining the identity of such persons where this does not appear in the title of the firm. The act provides a system for the registration of the real name or names, and addresses, of all such persons owning or interested in any business. The provisions of the act are beneficial, and should not be frittered away by a narrow construction of its terms. The word "fictitious" is employed in connection with "assumed", and we may reasonably conclude that the words are to be considered as expressive to some degree of the same idea.

Plaintiffs trading under a firm name containing the family names of two of the partners but making no reference to the name of a third partner were within the provisions of the Act of June 28, 1917, P. L. 645, and the name was fictitious and conveyed a false impression. They were engaged in an unlawful business. It was not only forbidden, but declared to be a misdemeanor. The account against the defendant was contracted in the prosecution of that business; it was a part of the business in which they were engaged and for which the firm was organized and they could not recover on a contract for labor and materials furnished.

Dissenting opinion.

Appeal from the judgment of the Court of Common Pleas No. 1 of Philadelphia County. October Term, 1920, No. 350.

April 25, 1921. Opinion by Trexler, J.

The plaintiffs, doing business under the firm name of Moyer & Carpenter, brought this action against the defendant to recover the amount of a book account for labor and materials furnished to the defendant from time to time. The defendant, waiving a defense on the merits, set up as a defense at law the Act of June 28, 1917, P. L. 645, which provides that no individual or individuals shall hereafter carry on or conduct any business in this Commonwealth under any assumed or fictitious name, style or designation, unless the person or persons conducting or carrying on the same shall have first filed in the office of the prothonotary . . . a certificate under oath and signed by said person or persons setting forth the real name or names and addresses of all such persons owning or interested in said business, and also the name, style or designation under which said business is being or will be carried on or conducted." The third section of the act makes the carrying on of any business in violation of this prohibition a misdemeanor. The affidavit of defense avers that the plaintiffs conducted their business in the fictitious name of "Moyer & Carpenter," without having filed the

VOL. XXXVII, No. 86

Moyer et al. v. Kennedy.

necessary certificate. The question came before the court as one of law, and judgment was given the defendant. But one question is presented on the appeal-is the act referred to a bar to the plaintiffs' action?

It seems to be admitted that the name under which the plaintiffs were doing business is within the terms of the statute, and that question is not raised in the printed argument, and seems not to have been considered in the court below. The opinion of the court assumes that there was a violation of the act. We might therefore pass this phase of the case without further reference, but as the matter is of some interest to those engaged in partnerships we will briefly consider it.

The purpose of the act is very evident. It is designed to prevent fraud in business transactions. It affords a method which enables anyone to readily ascertain with whom he is dealing. It furnishes a means of ascertaining the identity of such persons where this does not appear in the title of the firm. The act provides a system for the registration of the real name or names, and addresses, of all such persons owning or interested in any business. The provisions of the act are beneficial, and should not be frittered away by a narrow construction of its terms. The word "fictitious is employed in connection with "assumed," and we may reasonably conclude that the words are to be considered as expressive to some degree of the same idea. It would therefore seem that where the names of all the parties do not appear in their business style or designation, such style or designation comes within the terms of the act. "Moyer & Carpenter" does contain the family names of two of the persons who purport to constitute the firm, but the name "Miller," the third partner, does not appear. It may be argued that where the family name of all the partners appear, the style or designation is not fictitious. Such conclusion seems to be predicated on the fact that the persons named in the style or firm name, although their identity is not fully revealed, do actually exist, and the title is true as far as it goes. Whether this be so, we need not decide, but in the case before us Moyer & Carpenter, as stated before, do not compose the firm. Instead of being a partnership formed by two, there were three partners. The title or style negatives the thought that there are three partners. It is therefore fictitious. It conveys a false impression. It is indeed a narrow construction of the act which would not make its terms comply to such a condition. The averment of the affidavit of defense that the partnership was not registered was admitted in the lower court, in the printed brief of the plaintiffs and in the argument at bar.

The plaintiffs were, therefore, engaged in an unlawful business. It was not only forbidden, but declared to be a misdemeanor. The account against the defendant was contracted in the prosecution of that business; it was a part of the business in which they were engaged and for which the firm was organized. It has been the declared law of this Commonwealth for more than a hundred years that an action founded on a transaction prohibited by statute cannot be sustained, although it be not expressly declared in the statute that the contract is void.

This was the rule of the common law in England, and the prin

Moyer et al. v. Kennedy.

ciple has been firmly established in this State.

Wherever it appears

that the action is founded on a violation of a statute the obligation is invalid.

The first case in which the question seems to have arisen was Maybin v. Coulon, 4 Yeates 24, in which the obligation asserted was entered into in violation of the navigation laws of the United States, with respect to the registration of the ownership of vessels. The court held the contract to be void. The same principle is applied in Columbia Bank and Bridge Co. v. Halderman, 7 W. & S. 233, where it is held that a bond given to a stakeholder to indemnify him for giving up to the winner money deposited as a bet on an election, is void. In Seidenbender et al. v. Charles, Administrator, 4 S. & R. 150, the action was on a promissory note given on the purchase of a ticket in a lottery made by Charles for the sale of a tract of land. Defense was made that the transaction for which the ticket was sold was prohibited by an Act of Assembly, and this was held to be good; the court holding that an action cannot be sustained founded on a transaction prohibited by statute. The same question arose in Holt v. Green, 73 Pa. 198. The plaintiff there was a merchandise broker, and sued to recover commissions for transactions in which he was engaged. The act of Congress imposed a license which the plaintiff had not taken out. The Court refused to enforce the contract on the ground that the plaintiff in transacting the business had violated the Federal Statute. Johnson v. Hulings, 103 Pa. 498, was an action to recover commissions as a real estate broker. It appeared that the plaintiff had not taken out a license as required by the Act of 1849. After considering the numerous cases cited, the court said: “All these cases tend to elucidate the rule as stated in Swan and Scott, and determine beyond controversy that wherever it is made to appear during the trial of a case that the plaintiff's case rests upon an illegal foundation, the court will not lend its aid to enforce it." The same result was reached in Swing v. Munson, 191 Pa. 582, where a foreign insurance company undertook to do business in this State in violation of the Act of April 4, 1873, P. L. 20.

Applying the doctrine of these cases to the facts presented by the pleadings we see no escape from the conclusion that the plaintiffs' action cannot be maintained. The business was conducted in direct violation of the statute. It was not a matter of collateral, or in any way incidental, to the business, or so related to it that it could be regarded as an independent transaction. They did work and furnished material to the defendant in the regular course of their business. If the statute is applicable anywhere it is to this state of acts. To sustain the action it would be necessary to hold that, although the cause arose contrary to the declared public policy of the State and in a manner which might have subjected the parties engaged therein to penalties, nevertheless the obligations arising from such illegal business are of binding effect. To do so we must disregard numerous precedents and a well-established principle of the common law.

The judgment is affirmed.