National City Finance Co. v. Lewis, Civ. 6702 (1931)

* Rehearing denied 4 P.2d 163 . Three barriers have been erected between plaintiffs and the judgment for $87,550 and interest which they desire. The first barrier is the conclusion that the plaintiffs have no legal capacity to sue, because they have failed to file and publish a certificate of doing business under a fictitious name. Secondly, it is found that fraud guided the defendant's hand as he signed the twelve notes upon which recovery is sought. Lastly, it appears that plaintiffs failed to demand payment when the notes matured and neglected to tender the stock which had been pledged as security for the notes. We are of the opinion that the first of these barriers is without substance, that the second is without a sound foundation in the evidence thus far produced, and that only a new trial can determine how real an obstacle the facts, out of which the third barrier is built, may prove to be. The notes sued upon were made payable to the National City Finance Company. This payee, the trial court found, is a common-law trust, with E. L. Junod, John L. Junod, and Myron J. Sophy, as trustees, doing business in their collective capacity under a fictitious name. None of these…