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Reisen Lumber & Millwork Co. v. Simonelli

Decided: December 22, 1967.

REISEN LUMBER & MILLWORK CO., A CORPORATION OF NEW JERSEY, PLAINTIFF,
v.
ANGELO SIMONELLI AND ALLEN MILLINGER, INDIVIDUALLY AND AS CO-PARTNERS TRADING AS THE YORKE INVESTMENT COMPANY, AND JOVINA SIMONELLI, DEFENDANTS



Larner, J.s.c.

Larner

[98 NJSuper Page 336] Plaintiff is engaged in the business of selling lumber and related products. On or about September 16, 1966 an account was opened with plaintiff by defendant Angelo Simonelli, in his name and in the trade name of Yorke Investment Company. Plaintiff's books designated the account as follows: "Angelo Simonelli and Yorke Investment Co." Thereafter, between September 16, 1966 and May 22,

1967, plaintiff delivered materials on order of Simonelli upon which there is a claimed balance due of $5,197.46. Plaintiff has recovered a default judgment against Simonelli and now seeks a summary judgment against the defendant Allen Millinger, contending that it is entitled to judgment as a matter of law regardless of the factual allegations contained in the affidavits submitted by Millinger in opposition to the motion.

The basis of plaintiff's position is that (a) on June 5, 1963 Simonelli and Millinger filed a business name certificate with the Essex County Clerk pursuant to the provisions of N.J.S.A. 56:1-1 et seq., which represented over their signatures that the owners of the business conducted under the trade name "Yorke Investment Company" are Angelo Simonelli and Allen Millinger, and (b) as of the time of the sale and delivery of the materials involved, a certificate of dissolution of the partnership of Yorke Investment Company had not been filed pursuant to the provisions of N.J.S.A. 56:1-6 and 7. It is therefore plaintiff's contention that the partnership existed and continued by virtue of the aforesaid filing, and that defendant Millinger is estopped from denying the existence of the partnership and is liable for the debts of said partnership incurred under the name of Yorke Investment Company. It asserts that this conclusion results from the provisions of the Uniform Partnership Law and particularly paragraph 1 of N.J.S.A. 42:1-16.

The affidavits submitted by defendant establish, for the purpose of this motion, that Simonelli and Millinger had entered into a partnership some time prior to November 1964 to purchase real estate and assumed the trade name of Yorke Investment Company. The partnership did engage in the purchase of real estate but not in the construction business. In any event, in November 1964 the two defendants dissolved the partnership in fact and no longer conducted any business together after that date.

Simonelli, however, continued to do business alone under the name of Yorke Investment Company, while Millinger had

no authority to sign checks thereafter and had no financial interest whatever in Simonelli's business activity.

In 1966 Simonelli was engaged in the construction of a building on land located at 383 Clifton Avenue, Newark, New Jersey owned by his wife and himself. He personally established the account with plaintiff and ordered the materials involved for delivery to the construction job at 383 Clifton Avenue.

Contrary to plaintiff's allegations, Simonelli states in his affidavit that he made no mention of Millinger to plaintiff and never represented that Millinger was a partner or was in any way connected with Yorke Investment Company. He points out that credit was extended to him alone and that plaintiff made no inquiry of him as to the make-up of Yorke Investment Company. He assigned as a reason for the use of the partnership name in his transactions with plaintiff the fact that he had maintained an active checking account in that name and desired to continue using it for payment of materials on the construction project.

Plaintiff admits that it did not examine or cause to be examined the county clerk's records as to Yorke Investment Company before extending the credit between September 1966 and May 1967, and therefore concedes that it did not rely upon the filing of the partnership name certificate or the absence of a certificate of dissolution during that period. It is evident that the status of the Essex County Clerk's records in this regard was not discovered by the plaintiff until suit was about to be instituted.

It should also be noted that plaintiff had not extended credit to Simonelli or the partnership prior to the dissolution in fact in November 1964, and that the transaction with Simonelli took place long after the partnership was dissolved.

In the light of the factual data submitted by defendant, the court cannot grant plaintiff's motion for summary judgment unless the mere recording of the partnership name without the filing of a ...


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