Mangan v. Schuylkill County , 273 Pa. 310 ( 1922 )

Opinion by

Mr. Chief Justice Moschzisker,

April 30, 1918, “M. A. Mangan and William S. Pugh, trading under the firm name of Mangan & Pugh,” brought suit against the County of Schuylkill, to recover $3,400, with interest from November 1, 1917, on a written contract for the erection of a county bridge, completed and opened to the public about October 1, 1917, since which time it has been in regular use. At the close of the testimony, counsel for defendant moved for a compulsory non-suit on several grounds, two of which are now before us; namely, (1) that there were not proper parties plaintiff, as certain persons, other than the two named above, had been admitted by amendment to the record after the jurors were sworn, and (2) that no certificate, as required by the Act of June 28,1917, P. L. 645, relating to persons doing business under assumed or fictitious names, had been filed. The trial judge adopted the last mentioned ground, and the court below, after discharging a rule to show cause why the nonsuit should not be taken off, entered judgment for defendant; plaintiff has appealed.

As to the first ground for the nonsuit, at trial counsel for plaintiff amended the record “by adding the names of Hugh Dolan and I. D. Beahm, as plaintiffs, members of the firm of Mangan & Pugh.” In disposing of defendant’s objection to this course, the court below says: “The test of an amendment is whether or not it will deprive defendant of any right. We do not see how [the present one] does: we will therefore permit it.” In this we discover no error.

The court erred, however, in sustaining the last ground for the nonsuit. The contract in this case was made July 12, 1917, when the bridge-building firm was composed of only M. A. Mangan and W. S. Pugh, the first-named parties plaintiff, and the testimony so shows. Since the action was on a written agreement between the original members of plaintiff partnership and defendant county, when, after the execution of the contract, the two other parties acquired an interest in the firm, the suit might properly have been brought by M. A. Mangan and W. S. Pugh, trading as Mangan & Pugh, to the use of M. A. Mangan, W. S. Pugh, Hugh Dolan and I. D. Beahm (see Walker v. Mason, 272 Pa. 315); but all parties in interest having been brought upon the record, they could be placed by the court below in whatever position would best and most practically work out the ends of justice: Patton v. P., C. & St. L. Ry. Co., 96 Pa. 169, 173, 174. That which might have been done at trial, can and will be done here (Patton v. P., C. & St. L. Ry. Co., supra, and Fritz v. Heyl, 8 W. N. C. 374; M. E. Church v. Equitable S. Co., 269 Pa. 411, 415); we accordingly treat the suit as though instituted in the manner above indicated.

This brings us to the main question in the ease, whether the court below correctly construed the Act of 1917 as controlling against plaintiffs’ right to maintain the pi'esent action; and, as previously indicated, this question must be answered in the negative. The Act of 1917 makes it unlawful, unless its provisions are first complied with, to carry on business “under any assumed or fictitious name, style or designation.” It is to be noticed, the act does not say “under either an assumed or a fictitious name,” but “under any assumed or fictitious name.” We are of opinion the word “fictitious” is here used as explanatory of “assumed,” and the two were not intended to have different meanings; that these two words have like meanings may be seen by the following excerpts from Webster’s New International Dictionary: it defines “assumed” thus, — “supposed, pretended, make believe,” and “fictitious” thus, — “feigned, imaginary, pretended, not real, counterfeit, false, not genuine, arbitrarily invented or devised.” It is in these general senses that both words are employed in the statute before us.

The name “Mangan & Pugh” is not “assumed or fictitious” within the meaning of the Act of 1917; on the contrary, it represents the real names of the two men who contracted, under that style, with defendant county. The act was never intended to cover old-fashioned, genuine, firm names (see opinion of Mr. Justice Frazer, in Walker v. Mason, 272 Pa. 315); and the court below erred in so applying it.

The order refusing to take off the nonsuit and the judgment in favor of defendant are reversed, with a procedendo.