Munoz v. Ling

  This is an action in assumpsit for the balance alleged to be
due for work and labor performed. The plaintiff sued as the
assignee of the creditor. Upon the conclusion of plaintiff's case
before the magistrate, an involuntary nonsuit was entered upon
four grounds, three of which involved the legality of the
assignment, the fourth, payment. Defendant claimed the assignment
was void for the reason that it was to "John Munoz Agency,"
neither a natural nor artificial person having legal entity.
Plaintiff

appealed to this court upon points of law which present for
review the propriety of the order of nonsuit upon the grounds
alleged.
  First as to the legality of the assignment: Plaintiff as a part
of his case in chief testified to his true name which is the same
by which he sued as plaintiff. He also testified that he did
business under the name of "John Munoz Agency" and was the
assignee named in the assignment; that John Munoz Agency was his
own collection agency; that it was not a corporation nor a
partnership and that he used the name for his business.
  Whether the name "John Munoz Agency" is an assumed or trade
name is debatable. (See Johnson v. Cass  Emerson, 91 Vt. 103,
99 A. 633.) But assuming that it is, the evidence of the
plaintiff heretofore referred to was sufficient to explain the
ambiguity, if any, that existed in the assignment from the
presence of the word "agency" after and in connection with the
true name of the assignee. It is a settled rule of evidence that
it may be shown aliunde, by parol evidence, that an assumed or
trade name in the contract was meant to indicate a certain
person. "Such proof only identifies one of the parties to the
contract and makes no change in any term, condition, or
obligation of the contract, and is comprehended by that rule of
evidence which allows the fact of a latent ambiguity to be
explained by parol testimony." Rosenberg v. Maryland Casualty
Co., 130 Atl. (N.J. Misc.) 726, 727. (See also Beilin v.
Krenn  Dato, 350 Ill. 284, 183 N.E. 330.) Apparently the
assignment was to John Munoz, the plaintiff in the case. By
whatever name one may contract, he may sue and be sued by his
right name. (Steinfeld v. Taylor, 51 Ill. App. 399, 400.)
  The remaining ground of the nonsuit requires no discussion. The
plaintiff made out a prima facie case and there was no evidence
of payment of the balance of $80 due.
  The judgment of involuntary nonsuit is vacated and set

aside and the cause remanded for further proceedings consistent
with this opinion.