Apuzzo v. Hoer

• Decision Date: 07 February 1939
• Citation: Apuzzo v. Hoer, 125 Conn. 196, 4 A.2d 424 (Conn. 1939)
• Court: Connecticut Supreme Court
• Parties: APUZZO v. HOER.

4 A.2d 424

125 Conn. 196

APUZZO v. HOER.

Supreme Court of Errors of Connecticut.

February 7, 1939

Appeal from Court of Common Pleas, New Haven County; Walter M Pickett, Judge.

Action tried to jury by Fred Apuzzo against Laura F. Hoer to recover price of goods sold to the defendant.Verdict and judgment for the defendant, and the plaintiff appeals.

No error.

Alfonse C. Fasano and John A. Mele, both of New Haven, for appellant.

Joseph B. Morse and Nelson Harris, both of New Haven, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

BROWN Judge.

The amended substituted complaint in this action for groceries sold and delivered to the defendant, which went to the support of her family and for the general benefit of herself and her husband, alleges a net balance due of $1093.48, after crediting total payments of $541.85 up to January 25, 1932.The account is comprised of $200 due prior to a negotiable promissory note therefor dated March 14, 1937, $1357.73 due on twenty-three stated monthly items from March, 1928, to February, 1930, and $77.60 due on items evidenced by eleven checks described by date and amount received from October 17 1931, to December 5, 1931.It is further alleged that the defendant until 1934 promised to pay, but failed to do so.The defendant's answer is a denial, and a special defense that the action is barred ‘ inasmuch as the right of action * * * did not accrue within six years from the date the same is alleged to have accrued.’This special defense is denied by the plaintiff's reply.The action was brought June 8, 1937.

Error is assigned in the court's failure to charge that the Statute of Limitations is an affirmative defense, and that therefore the burden rested upon the defendant to prove it.The claims of proof of the parties are in agreement that early in 1930the plaintiff‘ terminated further credit’ on the account, and that thereafter all purchases were on a cash basis.While it is alleged in the complaint as amended that $1015.88 is the balance due on the account for purchases prior to 1930, and $77.60 for those subsequently made on a cash basis, the finding discloses no claim by the plaintiff for the specific recovery of the latter items, but rather one for recovery of the whole amount of which they were but a part.These purchases subsequent to 1930 concededly were made, however, within six years before action brought.It sufficiently appears from the charge as given that the court's instructions concerning the defense of the Statute of Limitations were inapplicable to them, and related to those ‘ of the old book balance’ only.This balance was one on a running account, and the action to recover thereon is in the nature of one for book debt, so that the statute would run from the last payment made on account.McKeon v. Byington,70 Conn. 429, 434, 39 A. 853;Sanford v. Clark,29 Conn. 457, 462;Robbins v. Harvey,5 Conn. 335, 342;Ashley v. Hill,6 Conn. 246, 248.Since, as the court correctly stated to the jury, it was conceded that the right of action on this running account accrued more than six years prior to June 8, 1937, the court had no occasion to charge that the burden was on the defendant to prove that the statutory period of six years had elapsed between this accrual and the bringing of the suit.

The sole and vital disputed question of fact determinative of the question whether the statute constituted a defense, which the jury had to decide, was whether the small cash payments in January, 1932, were made by the defendant upon the old account under circumstances warranting an implication of a promise to pay the balance, or some new promise was made by her, thus tolling the statute, or whether these payments were merely given and received in liquidation of outstanding checks issued for the later purchases on a cash basis, and no new promise was made, as claimed by the defendant.Payments of the latter kind would be ineffective to toll the statute.Boughton v. Boughton,77 Conn. 7, 11, 58 A. 226;Sanford v. Clark, supra.The fact that the plaintiff applied them to the old account would not affect the situation because a part payment to have the effect of tolling the statute must be ‘ made and accepted as payment of part of the particular indebtedness in suit and under such circumstances that it recognizes the whole of the debt as subsisting, so that the law can imply from it a promise to pay the balance.’Clark v. Diefendorf,109 Conn. 507, 515, 147 A. 33, 36.This issue having arisen under the plaintiff's allegation, of a new promise made by the defendant within the six year period, which the defendant denied, the court properly charged concerning it: ‘ that is a question of fact for you, with the burden of proof upon the plaintiff to prove by a fair preponderance of the evidence the matters which he asserts in that regard.’As the case was tried, the court did not err in failing to charge that the statute constituted an affirmative defense, or that the burden of proof thereunder was on the defendant.

Another error assigned is the court's charge that ‘ a payment made by her [the plaintiff's] husband without her knowledge and consent would not affect her statutory liability-wouldn't start the statute running again so far as she was concerned.’It was undisputed that all the groceries purchased from the plaintiff were for the defendant's household and for the defendant's family, and that some of the dated checks already referred to were given by the defendant and some by her husband.The plaintiff's case falls within the provision of § 5155 of the General Statutes that the husband and wife ‘ both shall * * * be liable when any article purchased by either shall have in fact gone to the support of the family, or for the joint benefit of both.’The plaintiff's claim is that their obligation is joint, and that therefore a promise by the defendant's husband to pay it, even though made without her knowledge or consent was sufficient to take it out of the Statute of Limitations as to her, and he relies upon decisions of this court as authority.In Clark v. Sigourney,17 Conn. 511, 516, it was held that a promise of one of two joint makers of a note was sufficient to toll the statute as against the other, and an acknowledgment of the indebtedness by payment or otherwise, by one of the joint obligors has been held to have the same effect.Bissell v. Adams,35 Conn. 299, 302;Beardsley v. Hall,36 Conn. 270, 275, 4 Am.Rep. 74.And in one jurisdiction at least this principle has been held applicable where the joint obligation was one raised by a statute of the nature of the one above quoted.13 R.C.L. 1195, § 225;Lawrence v. Sinnamon,24 Iowa 80, 84;Waggoner v. Turner,69 Iowa 127, 28 N.W. 568, 569;Phillips v. Kirby,73 Iowa 278, 34 N.W. 855, 856;15 L.R.A. 717 note, 718.

The three Connecticut cases last cited and others, which are authority for the rule that a part payment by one joint debtor will toll the running of the statute as regards the other, are discussed in this court's opinion in the later case of Broadway Bank & Trust Co. v. Longley,116 Conn. 557, 560, 165 A. 800, 801.As was there pointed out, while this rule was at one time the common law of England, it has been changed by statute there, does not represent the opinion prevailing today, and is opposed by the great weight of authority.Note, 71 A.L.R. 375;17 R.C.L. 936, 937, 938;37 C.J. 1131, 1163.The decision of that case did not require us to consider whether this rule of our earlier cases should be followed.The assigned error in the charge which we are now considering does, however, squarely present this question for determination.It is our conclusion that, for the reasons which we cannot better epitomize than by reiterating in the following paragraph what we said in the Broadway Bank case, the rule established by the earlier cases should no longer be the law of this jurisdiction:

‘ The principle upon which it [the rule] proceeds, that out of the community of interest represented by the joint obligation arises an agency on the part of each obligor to toll the statute as to the other by part payment or acknowledgment of the debt, clearly has little or no foundation in the actual intent...