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the jury to determine as this court early recognized and plainly stated in People v. Garbutt, 17 Mich. 26 (97 Am. Dec. 162). This combination of adverse rulings upon that subject and invasion of the province of the jury by belitting the character of testimony submitted to it deprived defendant of a substantial right pertaining to a fair and impartial trial, and was upon the face of this record as a conclusion of law presumptively prejudicial error indicating a miscarriage of justice in that particular which entitles defendant to a new trial.
We find no reversible error in rulings on the testimony of McCauley and Sullivan. Before the testimony complained of was offered a conspiracy had been prima facie proven. McCauley was one of the conspirators. His testimony implicating his co-conspirators was competent. The rule in such cases was early stated by this court as follows:
"The general rule is well settled that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common enterprise, or while it is still in progress, is evidence against all the parties to it." People v. Pitcher, 15 Mich. 396.
At the time of McCauley's conversation with Sullivan the conspiracy was in progress. It took place in connection with work being done to further the conspiracy, while some of the old livery stock was being moved from LaFrance's place into the barn proposed to be burned, which had attracted Sullivan's attention. We discover scant merit in most of the remaining assignments of error, and it is not to be anticipated that any which seem questionable will confront the court on a retrial.
The verdict must be set aside for the reasons stated and a new trial awarded.
BIRD, C. J., and OSTRANDER, MOORE, BROOKE, FELLOWS, STONE, and KUHN, JJ., concurred.
ROSSELLO v. TRELLA.
CONTRACTS-PARTNERSHIP-CERTIFICATE-FICTITIOUS NAMES. Where a contract to erect a building was signed by partners in their individual names, with no partnership name stated nor reference made to a partnership, said contract was not void, although no certificate of copartnership had been filed with the county clerk as required by Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, § 6354 et seq.).
Appeal from Wayne; Dingeman, J. Submitted April 29, 1919. (Docket No. 6.) Decided May 29, 1919.
Bill by Peter R. Rossello and another, copartners as Rossello & Rapp, against Joseph C. Trella and another to foreclose a mechanic's lien. From a decree dismissing the bill, plaintiffs appeal.
Joseph T. Schiappacasse (Harvey B. M. Wilds, of counsel), for plaintiffs.
Anthony Maiullo, for defendants.
STEERE, J. On September 8, 1915, plaintiffs filed their bill of complaint in the circuit court of Wayne county in chancery to foreclose a statutory lien to collect a claimed balance due them for labor and material furnished in constructing for defendants a described store and flat building in Detroit, under a written agreement between the parties. The contract is dated July 7, 1914, and provides for completion of the building by December 28, 1914, at a stated price of $6,400, with $50 extra for moving a certain column, payments aggregating $4,500 to be made at certain stages as the work progressed and the balance on completion of the building. Plaintiffs allege in their bill that the last "labor and materials was fur
nished the 6th day of March, A. D. 1915"; that they furnished extra labor and material according to certain alterations in the plans ordered by defendants to the amount of $572 and claim a lien for balance due amounting to $1,950.39. Defendants answered issuably in denial and asked affirmative relief as by cross-bill for failure to complete the building within the specified time, and failure to construct it according to plans and specifications, and further ask the benefit of a demurrer as to said bill because plaintiffs were copartners and had not filed with the clerk of Wayne county a certificate in relation thereto as required by Act No. 164, Pub. Acts 1913 (2 Comp. Laws 1915, § 6354 et seq.).
When the suit came on for hearing the latter objection was early urged for the defense and after briefly supplementing the pleadings and exhibits by certain undisputed facts counsel by consent submitted the question to the court on defendants' motion, in the nature of a demurrer, that plaintiffs' bill "be dismissed because the certificate of partnership was not filed as required in the above act." After hearing counsel the court granted defendants' motion and dismissed the bill of complaint.
It was conceded by counsel for both parties that "plaintiffs were copartners but did not file a certificate to that effect in accordance with Act No. 164 of the Public Acts of 1913, until after the contract was executed, but prior to the filing of the lien, however." They in fact filed such certificate on April 29, 1915, and their claim of lien on May 4, 1915, commencing suit on September 3, 1915.
Counsel for defendants contended and the trial court apparently held that the case was controlled by Maurer v. Greening Nursery Co., 199 Mich. 522.
It appears that plaintiffs in their work as contracting partners were doing business under the firm name
of Rossello & Rapp at times, and perhaps generally, although the contract which they entered into in this case does not so disclose. In that respect there is a marked difference between the Maurer contract and the one under consideration here. The carefully prepared contract in that case shows the firm of "Maurer Brothers" contracted as such, were so named in the commencement of the instrument and stated as "(hereinafter designated the contractor)." The contract was signed "Maurer Brothers" per a member of the firm. In the instant case the contract of July 7, 1914, is personally signed by the individual plaintiffs-"Peter R. Rossello. Phil B. Rapp." No firm name is used and no mention is made of any firm or partnership anywhere in the instrument, their separate names being set out in the introductory clause where they are designated as the party of the second part, with just how exact an understanding by the scrivener of the varied meaning of such designation is not clear for further on in the body of the instrument is the rather singular but express provision that the work is to be "done in a good, sufficient and workmanlike manner, to the entire satisfaction of said party of the second part,"-rendered innocuous, however, by a subsequent provision giving the superintending architect "full power to reject all material and workmanship not in full accordance with the spirit and meaning of the plans," etc.
In 1907 the legislature passed Act No. 101 (2 Comp. Laws 1915, § 6349 et seq.) "to regulate the carrying on of business under an assumed or fictitious name," prohibiting so doing unless a certificate is filed with the county clerk setting forth the name under which such business is owned or conducted and the true name or names of the person or persons owning and conducting the same with postoffice address, etc., violation of the act being made a criminal offense punish
able by fine and imprisonment. Construing it as an act directed particularly against the opportunity for fraud and imposition furnished to persons disposed to conceal their identity and avoiding responsibility under assumed or fictitious names, in the transaction of business, this court held that contracts made in violation of the act were invalid (Cashin v. Pliter, 168 Mich. 386 [Ann. Cas. 1913C, 697]); but held that partnerships openly using the true names or surnames of their members in their firm name in such manner as to fairly advise of the parties owning or conducting the business, and not mislead, were not to be regarded as operating under false, assumed or fictitious names within the meaning of the act. Axe v. Tolbert, 179 Mich. 556; Sauer v. Construction Co., 179 Mich. 618; Cross v. Leonard, 181 Mich. 24; Zemon v. Trim, 181 Mich. 130. Under that act as construed partnerships honestly adopting in their business firm names which were not a disguise and fairly indicated who owned and operated the business were safeguarded, and the act, as the court construed its intent, only reached in full force those operating under cover of actually obscuring false, assumed or fictitious names. Under that act a contract by and in the name of the firm of "Maurer Brothers," or "Rossello & Rapp," would be valid, though no certificate of partnership had been filed. But without repealing Act No. 101, Pub. Acts 1907, the legislature passed Act No. 164, Pub. Acts 1913, imposing on all partnerships the duty of filing such certificates, whatever names they did business under and without any exception or saving clause, making violation of the act a criminal offense punishable by fine and imprisonment in like manner as provided in Act No. 101, in effect nullifying decisions construing the former act as excluding partnerships not doing business under what must be regarded as strictly assumed or fictitious names. It was the opin