CROSS v. LEONARD.

PARTNERSHIP-NAMES-FICTITIOUS NAME.

The name Cross Brothers, adopted and used by two brothers named Cross engaged in business as copartners, is not an assumed name that must be registered under Act No. 101, Pub. Acts 1907 (2 How. Stat. [2d Ed.] § 2626), requiring the filing of a sworn certificate of membership, etc., with the county clerk.

Error to Wayne; Van Zile, J. Submitted April 20, 1914. (Docket No. 74.) Decided June 1, 1914.

Assumpsit in justice's court by William and Herman Cross, copartners as Cross Brothers, against George E. Leonard for money had and received. From a judgment for the defendant, plaintiffs appealed to the circuit court. Judgment for defendant. Plaintiffs bring error. Reversed.

John J. Gafill (Frederic T. Harward, of counsel), for appellants.

George E. Leonard, in pro. per.

MOORE, J. This action was brought by William Cross and Herman Cross, copartners doing business under the name of Cross Brothers, against the defendant, for money due amounting to $49.81, before one of the justices of the peace for the city of Detroit. The plaintiffs declared orally upon all the common counts, while defendant pleaded in abatement. The case was tried by the justice, who rendered judgment of no cause of action because plaintiffs had failed to file a certificate, as is required by Act No. 101 of the Public Acts of 1907 (2 How. Stat. [2d Ed.] § 2626 et seq.), in the case of copartnerships or individuals

doing business under an assumed or fictitious name. The amount involved being below $50, no appeal could be taken, because of the statute applying to justices' courts in Detroit. The case was removed to the circuit court by writ of certiorari, and a hearing was had, whereupon judgment was duly entered, affirming the judgment of the justice of the peace. The case is brought here by writ of error.

The only question involved for the determination of this court is this:

"Is a copartnership, consisting of two brothers, doing business under their surnames, with the word 'Brothers' added thereto, required to file a certificate with the clerk of the county in which their business is carried on, as provided by Act 101 of the Public Acts of 1907?"

This court has had occasion to consider the question raised in the recent cases of Axe v. Tolbert, 179 Mich. 556 (146 N. W. 418), and Sauer v. Construction Co., 179 Mich. 618 (146 N. W. 422). We think the principles announced in those cases and the authorities cited therein are controlling in the instant case, and it is not necessary to repeat here what is said there.

The judgment is reversed, and a new trial ordered. MCALVAY, C. J., and BROOKE, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.

LANE v. AU SABLE ELECTRIC CO.

- MASTER AND

1. LANDLORD AND TENANT · - TRESPASS — EVICTION SERVANT. Evidence that plaintiff's employer, after plaintiff had joined a strike, notified him to quit and surrender up the house and premises that he occupied as a part of his employment, and thereupon sent men to put him out, who, after advising him why they came, removed his furniture to the street, and that the plaintiff cautioned them against damaging it, but they injured the furniture to the extent of $14.50, held, to be insufficient to show excessive force or forcible entry and detainer, although plaintiff's judgment for the damage done by their neglect is allowed to stand.

The relation of the servant was not that of tenant to landlord, where he occupied a house on the premises of his employer as a part of the compensation paid to him. It was an incident of his hiring and his right to the use of the premises ceased when he joined a strike and ceased to perform his duties.

3. SAME-DAMAGES-CONTRACT.

Accordingly, plaintiff could not recover damages for being evicted and his goods set out of the house, upon his claim of excessive force, nor could he recover damages because of mortification, injured feelings, etc.

Error to Muskegon; Sullivan, J. Submitted April 20, 1914. (Docket No. 84.) Decided June 1, 1914.

Case by William Lane against the Au Sable Electric Company for an unlawful eviction. Judgment for plaintiff on a directed verdict for less than the damages claimed, and he brings error. Affirmed.

Jerome E. Turner, for appellant.

Cross, Vanderwerp, Foote & Ross (W. S. Westerman, of counsel), for appellee.

MOORE, J. This suit is brought by William Lane to recover damages which he alleges he sustained by reason of an unlawful eviction of himself and family from certain premises located in the city of Muskegon Heights, owned by defendant.

The plaintiff was chief operator of the substation of the defendant at Muskegon Heights, when a strike came on. His testimony as to the occurrences which gave rise to this litigation is, in substance, as follows:

"I lived there and operated the station, used the house as a dwelling house. The time of this strike was the 27th day of May, 7 o'clock in the evening. I don't just remember how long I remained in the employ of the company-after the strike, after the boys walked out. I think it was until about 9 o'clock in the morning of the 28th, the next day. I did not have any talk at that time with any of the officers of this defendant; I don't know that I did. On the 3d day of June, in the forenoon, we were still on the place and in possession of the dwelling house. On that day we were eating dinner. * *We wasn't up from the table, but we were through, and in come Mr. Stewart and Mr. Burton and asked me if I had received notice to vacate, and I told them that I had, and he asked me if I was going to move, I think. No, he said, 'You have received your notice and you have not vacated yet.' I said, 'No.' He said, 'We will have to set your furniture out on the street.' And he then asked me if I had any place to go, and I told him no, that I didn't. * * * He said that he would take my wife and children to the hotel, but he didn't say what hotel, or who was to pay the bill, and I told him, 'No;' that I could look after my wife; that it wasn't necessary. And he and Mr. Stewart went out of the house. I don't think they were out over 20 minutes before in came these men and began to tear up and set things out. I can't say that I counted them, but I would say that there was eight or nine men came in. They were strangers to me. It took them about an hour and a half to set our goods in the street. I was there myself all the time while this was being done; also my wife and children.

On cross-examination:

*

"There is a passageway between the dwelling house and the substation, as shown there; it is sort of an alleyway, so that you can pass right from the dwelling house into the substation, or from the station into the dwelling house. It was used for convenience, or had been so used, in performing my duties there as chief operator. * * Shortly before I came here the chief operator there at the substation died, and the position was offered to me. I was receiving $60 a month in Grand Rapids and provided my own place of living; the company didn't furnish me a place to live in in Grand Rapids; so when I came over here my compensation was $55 a month and the use of this house, which Mr. Gilbert thought was worth $5 or $10 a month, and the company also furnished the lights and water, and there was a telephone in the house, which rental wasn't paid by me. It was furnished for my use. There was also a telephone in the substation-the Citizens' and Bell was extended from the house to the substation, and the private, the power company's private, phone was extended from the substation to the house. * * * I performed the last of my duties there as chief operator on the 27th day of May, about 7 o'clock in the evening; then quit and went on a strike; in other words, I walked out with the other strikers. Did not send any notice to the company. There were others at the station capable of performing my duties. One of the strikers, the operator that had been there with me, he walked out, too. I and my helper, or whoever operated there at the substation, walked out at night at 7 o'clock, without any notice to the company whatever. I continued to live in the dwelling house. That substation is supposed to be opened all night, a man on duty there all night; I locked up the station. We had the keys and returned them afterwards to the operator, Mr. Essex. I didn't deliver the keys to anybody that night. When we walked out in that way it left the city and everything in darkness. I know that Mr. Stewart, the local manager here, and Douglas Erwin came out there and got in and turned on the lights; at the time I was down the street. I claimed that the company discharged me afterwards, not until after I had gone on