Bartolotta v. Calvo

• Decision Date: 29 November 1930
• Court: Connecticut Supreme Court
• Parties: BARTOLOTTA v. CALVO.

152 A. 306

112 Conn. 385

BARTOLOTTA v. CALVO.

Supreme Court of Errors of Connecticut.

November 29, 1930

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

Action by Antonio Bartolotta against Carmelo Calvo to recover damages for the failure of defendant's principal to deliver grapes as contracted for. Judgment for defendant, and plaintiff appeals.

Error and a new trial directed.

See also Calvo v. Bartollota, 152 A. 311.

Robert J. Woodruff, Louis Shafer, and John G Confrey, all of New Haven, for appellant.

Edward J. Finn, of Waterbury, for appellee.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

MALTBIE, J.

The plaintiff, who resides in Ansonia, at the solicitation of the defendant entered into a written contract with the Continental Grape Dispatch, Incorporated, of California for the purchase of a carload of grapes. The contract was signed on behalf of the corporation by the defendant as its agent. It specified that the grapes should be of two kinds, six tons of one, and eight tons of the other. The plaintiff sent the corporation a bank draft in payment for the grapes. When the car arrived, it was found to contain only grapes of the former kind. The complaint bases the plaintiff's cause of action upon an oral promise by the defendant that, if the plaintiff would execute the contract, the defendant would be personally responsible for the full performance of the contract, and that the plaintiff need not concern himself with the corporation in California, but could consider himself as dealing only with the defendant. At the trial the plaintiff claimed to have proved that the defendant made the following representations: " That he, the defendant, was a responsible man, that he lived in Waterbury at an address which he gave to the plaintiff on a piece of paper, that he owned real estate in Waterbury, and that if the plaintiff executed an order for a carload of grapes, that he, the defendant, would be responsible for any damage; that when the car arrived he would personally come and open the car; that he would be responsible for any damage to the grapes whether they arrived in good condition or bad condition; that he would watch close to ship plaintiff the grade of grapes he bought and would be responsible for what plaintiff-received; that he, the defendant, would be responsible for everything, and that whatever damages plaintiff sustained, defendant would be responsible for, that he the defendant, was going to have shipped to the plaintiff eight tons of Zinfandel grapes and six tons of Muscat grapes; that they were to arrive in good condition, otherwise he, the defendant, would be responsible; that if the plaintiff bought a carload of grapes the defendant would assume the entire responsibility for it, and the plaintiff did not have to recognize the company in California but need only recognize the defendant." The defendant denied making any representations of this nature.

One of the principal issues litigated at the trial was whether, if the jury found that the defendant made any such representations as claimed, the promise of the defendant was one to answer for the debt, default, or miscarriage of another within the statute of frauds (Gen. St. 1930, § 5982), so that, being oral, it was unenforceable. In this situation it was the duty of the trial court in its charge to leave to the jury the determination of what representations, if any, were made by the defendant, and to instruct them as to the principles of law which would determine the rights of the parties upon the basis of their findings upon this issue of fact. The trial court in its charge went at considerable length into an explanation as to the distinction between promises which were unenforceable under the statute and promises which were so far independent undertakings as not to be within its condemnation. It emphasized, as the distinguishing characteristics of the latter, a distinct benefit accruing to the promisor, pointed out that there was no evidence of any commission which would be earned by the defendant or of any benefit which would accrue to him from securing the contract for the corporation except such inference as might arise from his signing the contract as agent of the corporation, and finally, upon this phase of the case, charged that, if the jury found that the plaintiff had proven the promises substantially as alleged the question was: " Has the plaintiff established by a fair preponderance of the evidence that in making that promise the defendant did so induced by some benefit accruing to himself? If so, then that would be in law a contract of indemnity, which need not be in writing and would be enforceable. If there was no such benefit, if there was no consideration for it between himself and this plaintiff, then in law it was no more than a contract of guaranty, and must be in writing in order to be enforceable."

This was entirely too narrow a view to take of the situation. Fundamentally the distinction between a contract which falls within the condemnation of the statute of frauds and one which does not is that the former is a collateral undertaking to answer in case of a default on the part of the obligor in the contract, upon whom still rests the primary liability to perform; whereas, in the latter the obligation assumed is a primary one that the contract shall be performed. If, for example, in the instant case, the intention of the parties was that the defendant should assume the direct obligation of seeing that the plaintiff obtained the grapes desired through the instrumentality of the agreement of the California corporation, the promise of the defendant would not be one to answer for any default on the part of the defendant company, but would be his own primary obligation, and the fact that the agreement of sale made with the corporation would give the plaintiff a right or recovery against it would not alter the defendant's obligation. Thus in Reed v. Holcomb, 31 Conn. 360, the plaintiff was allowed to recover upon an oral promise of the defendant that he would see that a promissory note, which he had caused to be made to the plaintiff without his knowledge and induced him to indorse so that he, the defendant, might discount it, was paid and would indemnify the plaintiff for anything he had to pay, where it appeared that the plaintiff, although he supposed that if he had to pay it the makers would be liable to him, regarded their responsibility as of little value. The court said: " The section of the statute which is supposed to be applicable to the case was not intended to protect parties from any other contracts then those of suretyship or guaranty for the payment of some debt or the performance of some duty by a third person. But if no credit is given to such third person, and the consideration of the promise does not move from him, and he is not to be benefited by it, the statute did not intend to make void the promise because such third person might also be primarily liable for the same debt or duty."

It is true that in the same opinion the court went on to say " If the promise is on a sufficient consideration moving between the immediate parties to it, and from which the promisor is to derive a benefit, in view of which the promise is made, it then becomes a new and independent contract existing entirely between the immediate parties to it. The benefit which the original debtor may derive from it is incidental, and in no respect the object of the parties, and ought not therefore to affect the validity of their contract." Similar language is used in other decisions we have made. See McCormick v. Boylan, 83 Conn. 686, 687, 78 A. 335, Ann.Cas. 1912A, 882; Wolthausen v. Trimpert, 93 Conn. 260, 265, 105 A. 687. A consideration of our decisions as a whole, however, makes it clear that the consideration for the promise, or even the benefit to the promisor, is not the vital element which determines the nature of the undertaking. Dillaby v. Wilcox, 60 Conn. 71, 79, 22 A. 491, 13 L.R.A. 643, 25 Am.St.Rep. 299. Particularly is this so where, as here the promise is contemporaneous with the making of the contract default in which would be the basis of the promisor's liability. If there is a distinct benefit moving to the promisor by reason of his promise, that would indeed be relevant and generally a major consideration tending to show an intent to establish his undertaking as the assumption of a primary liability, but it is not conclusive. Thus in Warner v. Willoughby, 60 Conn. 468, 22 A. 1014, 25 Am.St.Rep. 343, where a...