Appeals, Nos. 39 and 50, Jan. T., 1953, from order of Court of Common Pleas of Delaware County, Sept. T., 1951, No. 894, in case of Essex Packers Limited v. Ethel Kisecker et vir., trading as Darby Sea Food Company. Order affirmed.
Martin F. Hatch, with him Vram Nedurian, Jr., for defendant, appellant.
Charles E. Rankin, with him Geary & Rankin, Ralph S. Croskey and Croskey & Edwards, for plaintiff, appellant.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The plaintiff, Essex Packers Limited, sued Ethel Kisecker and her husband, Percy K. Kisecker, as co-partners, trading under the fictitious name, Darby Sea Food Company, for the unpaid balance due for merchandise sold by the plaintiff to the company. The defendants filed separate answers. Ethel Kisecker denied that she was a co-partner with her husband in the company or that she had any interest whatsoever in the business. Percy K. Kisecker likewise denied any business partnership with his wife and averred that he was the sole owner of the business being conducted under the trade name, Darby Sea Food Company. He further defended on the merits, alleging that the goods sued for were of inferior quality. At trial Percy K. Kisecker withdrew his defense to the merits and permitted judgment to be entered against him individually for the full amount of the plaintiff's claim with interest. The trial was then proceeded with to determine whether Ethel Kisecker was also liable for the debt as a part owner of the business. The single issue was as to who was or were the owner or owners of the business and consequently liable for its debts. The term "defendant", as used hereinafter, will refer to Ethel Kisecker only.
Apart from proving the unpaid indebtedness, the plaintiff offered in evidence a record of the registration of the Darby Sea Food Company filed in the office of the Prothonotary of Delaware County on April 4, 1923, under the fictitious names Act of June 28, 1917, P.L. 645, as amended. The registration showed, inter alia: "5. The name of the agent, if any, through which said business is to be carried on or conducted in the Commonwealth of Pennsylvania, with his address is: Percy K. Kisecker, 27 N. 10th Street, Darby, Pa. 6. The signatures of all parties interested follow: Ethel Kisecker." The plaintiff supplemented this with the testimony of the Deputy Prothonotary of Delaware County who testified that his search of the records in the Prothonotary's office had failed to reveal any withdrawal or cancellation by Ethel Kisecker of her registration as the owner of the Darby Sea Food Company. The plaintiff also offered a record of the registration of the Darby Sea Food Company filed in the office of the Prothonotary of Delaware County on October 14, 1947, under the fictitious names Act. This registration showed, inter alia: "5. The name of the agent, if any, through which said business is to be carried on or conducted in the Commonwealth of Pennsylvania, with his address is: ... . 6. The signatures of all parties interested follow: P.K. Kisecker."
A motion for a compulsory non-suit having been refused, Ethel Kisecker testified, in defense, that she had not been connected with the business of the Darby Sea Food Company for twelve or thirteen years and that it had been conducted solely by her husband. According to the court en banc, "there were various inconsistencies and contradictions in her testimony which indicated that at most there was a loose family relationship in the conduct of the business." The defendant
introduced in evidence a certificate showing that on October 14, 1947, she had filed in the office of the Secretary of the Commonwealth a signed statement, under oath, setting forth that on January 1, 1947, a dissolution of the business theretofore carried on under the trade name of Darby Sea Food Company had been effected and requesting that her registration be cancelled which had accordingly been done. The defendant also offered in evidence a certificate of the Secretary of the Commonwealth that P.K. Kisecker had registered on October 14, 1947, to do business under the name of Darby Sea Food Company and a like certificate of the Prothonotary of Delaware County that P. K. Kisecker had registered in that County on October 14, 1947, to do business under the same fictitious name.
The learned trial judge submitted the case to the jury under instructions that the uncancelled registration of Mrs. Kisecker as the owner of the business trading under the name of Darby Sea Food Company, on file in the Prothonotary's office of Delaware County, raised a rebuttable presumption that she continued to own the business at the time here involved and that, if the presumption was not overcome in the minds of the jury by the defendant's testimony, it was sufficient to justify the jury in finding the defendant liable. The jury returned a verdict in favor of the plaintiff and against Mrs. Kisecker who moved for a new trial and for judgment n.o.v. The court en banc granted the motion for a new trial but ...