Beitler v. Rudkin

Decision Date07 May 1926
Citation133 A. 214,104 Conn. 404
CourtConnecticut Supreme Court
PartiesBEITLER ET AL. v. RUDKIN.

Appeal from District Court of Waterbury; Walter D. Makepeace, Judge.

Action by Joseph Beitler and others against Joseph A. Rudkin, on a claimed guaranty by the defendant, for agreed price of goods sold to a third party by the plaintiffs. Verdict and judgment for defendant, and plaintiffs appeal from denial of motion to set aside verdict, and for errors in the charge, and in the refusal of requests to charge. Error, and new trial ordered.

Sidney S. Cassel and Morris L. Robin, both of Waterbury, for appellants.

Joseph J. Davis and Herman J. Weisman, both of Waterbury, for appellee.

HAINES, J.

The first four reasons of appeal relate to the charge, and the remaining reason to the action of the court upon the motion to set aside the verdict.

The first assignment is directed to the charge as a whole, in not presenting all the issues to the jury; that it was inadequate and not a sufficient guide to the jury on all the questions of law; that it was too broad, contained matters of law which were " too far fetched," and did not apply to the issues in said case.

This does not comply with our rule, is not a proper assignment of error, and does not merit our consideration. It should be distinctly and specifically stated in what respects and how these general objections apply. Practice Book 1922, pp. 100, 107; General Statutes, § 5833.

" The reasons for the rule are apparent and weighty, and it should be observed in both letter and spirit. The letter requires particularity and definiteness. * * * A proper compliance with the rule, therefore, permits an appellant to assign such errors of law as are, in good faith, claimed by him to have been committed, and of which he has a reasonable expectation that he may wish to take advantage, and none other, and requires that these errors be assigned individually and not in gross." Farrell v. Eastern Machinery Co., 77 Conn. 484, 493, 59 A. 611, 614 (68 L.R.A. 239, 107 Am.St.Rep. 45); Temple v. Bush, 76 Conn. 41, 43, 55 A. 557; Harper Machinery Co. v Ryan-Unmack Co., 85 Conn. 359, 363, 82 A. 1027; Fagerholm v. Nielson, 93 Conn. 380, 387, 106 A. 333; Hine v. McNerney, 97 Conn. 308, 309, 310, 116 A 610.

The second assignment of error is open to criticism for much the same reason, in that it makes the general claim only that the court erred in those portions of the charge quoted, and does not point out specifically the error or errors complained of. State v. Tripp, 84 Conn. 640, 643, 81 A. 247; Johnson v. Cooke, 85 Conn. 679, 683, 84 A. 97 Ann.Cas. 1913C, 275; Ferrigino v. Keasbey, 93 Conn. 445, 449, 106 A. 445.

We conclude, from the briefs and arguments, that the plaintiffs contend it was error to charge the plaintiffs were required to prove their claim in the bankruptcy court. The further statement of the court, that the proper placing of the claim in the mails satisfied that requirement, is so obviously favorable to the plaintiffs that we cannot assume it to be in fact questioned by them, though it appears in the general statement which they claim was erroneous.

The question whether the guaranty related solely to the first bill of goods, or was a continuing one and covered the second purchase, was a vital issue before the jury. The verdict was for the defendant, and if, as they reasonably could have done for aught that appears, the jury believed the evidence of the defendant upon this point, viz. " * * * At no time did he guarantee any other purchase than the one order of October 24, 1922," then that verdict was of course correct. This issue was before the jury with others, however, and upon their general verdict we cannot, of course, know whether or not they held this guaranty to be a continuing one. Special interrogatories submitted to them would have removed this uncertainty and might even have rendered the appeal unnecessary.

As we have seen, the guaranty was not an absolute, but a conditional, one. In such cases--

" the liability of the guarantor generally is not determined by the single fact of the default of the principal debtor or obligor, but the person guaranteed should use every reasonable effort to collect the debt or enforce the obligation against the principal, unless there is sufficient excuse for his not doing so." 28 Corpus Juris, pp. 969, 970; Cowles v. Pick, 55 Conn. 251, 254, 10 A. 569, 3 Am.St.Rep. 44; Lemmon v. Strong, 55 Conn. 443, 446, 13 A. 140; Allen v. Rundle, 50 Conn. 9, 20, 47 Am.Rep. 599.

In this aspect of the case, the last statement of the claimed erroneous charge, as set forth in the second reason of appeal, was not an incorrect general statement of the law, viz.:

" * * * It is incumbent upon the plaintiff to exhaust all feasible remedies against Cohen, and to use due care and due diligence in attempting to collect from Cohen, before he can collect from the guarantor; and, if he shall fail to use such due diligence, then he has no remedy against the defendant."

The portion of the charge to which the plaintiffs must be assumed to have directed their objection is that in which the court told the jury that it was necessary for the plaintiffs to try to collect from Cohen by presenting their claim to the bankruptcy court, in order to meet this requirement of due diligence, and as a condition precedent to fixing responsibility upon the guarantor.

Some jurisdictions, notably New York, Michigan, and Wisconsin, hold that suit is necessary as a prerequisite to the enforcement of the claim against the guarantor; but it is the rule in most jurisdictions, and has been held in this state on what seems to us the sounder reasoning, that the requirement of due diligence does not impose this obligation upon the creditor where the debtor is clearly insolvent, or, in other words, the creditor is excused from bringing suit. The following decisions support the majority view: Sanford v. Allen, 1 Cush. (Mass.) 473; Miles v. Linnell, 97 Mass. 298; Wheeler v. Lewis, 11 Vt. 265; Bull v. Bliss, 30 Vt. 127; Dana v. Conant, 30 Vt. 246; Brackett v. Rich, 23 Minn. 485, 23 Am.Rep. 703; Osborne v. Thompson, 36 Minn. 528, 33 N.W. 1; Stone v. Rockefeller, 29 Ohio.St. 625; National Bank v. Thomas, 220 Pa. 360, 69 A. 813; Janes v. Scott, 59 Pa. 178, 98 Am.Dec. 328; McClurg v. Fryer & Anderson, 15 Pa. 293; Woods v. Sherman, 71 Pa. 100; Wheeler v. Dake, 129 Mo.App. 547, 107 S.W. 1105; Grannis & Co. v. Miller & Wilkins, 1 Ala. 471; Gilligan v. Boardman, 29 Me. 79, 82; Osborne v. Smith (C. C.) 18 F. 126, 130; Johnson v. Charles D. Norton Co., 159 F. 361, 86 C.C.A. 361; 26 Amer. Law Reg. 139; Perkins v. Catlin, 11 Conn. 213, 29 Am.Dec. 282; Ransom v. Sherwood, 26 Conn. 437; Rhodes v. Seymour, 36 Conn. 1; Gillespie v. Wheeler, 46 Conn. 410; Allen v. Rundell, 50 Conn. 9, 47 Am.Rep. 599; Beardsley v. Hawes, 71 Conn. 39, 40 A. 1043.

The reasoning of these authorities, in general, seems to be that the guarantor in effect guarantees the solvency of his principal during the continuance of the guaranty, and that the effort to collect by suit would be vexatious, expensive, a cause of delay, and largely nugatory.

Our attention has been directed to no decisions upon the precise question whether the creditor must present his claim to the bankruptcy court wherein the debtor's estate is being settled, but the reasoning which supports the view that it is not necessary to bring suit in case of the insolvency of the debtor applies to the proof of claim in the bankruptcy court, and we hold that it has the same effect, so that it is not necessary to make such proof in order to meet the requirement of due diligence. In this particular, then, the charge of the court was erroneous.

As to the third reason of appeal: It is to be noted that the plaintiffs made...

To continue reading

Request your trial
3 cases
  • State v. Palko
    • United States
    • Connecticut Supreme Court
    • 4 Marzo 1937
    ..." It should be distinctly and specifically stated in what respects and how these general objections apply." Beitler v. Rudkin, 104 Conn. 404, 405, 133 A. 214; State v. Tripp, 84 Conn. 640, 643, 81 A. In the brief, a sentence and a part of a sentence are taken from the charge, without refere......
  • Piascyk v. Malon
    • United States
    • Connecticut Supreme Court
    • 21 Marzo 1933
    ... ... of a note to bring suit against a maker when such suit would ... be fruitless. Allen v. Rundle, 50 Conn. 9, 47 ... Am.Rep. 599 Beitler v. Rudkin, 104 Conn. 404, 408, ... 133 A. 214; Gillespie v. Wheeler, 46 Conn. 410, 411 ... Mazurkiewicz v. Dowholonek, supra, 111 ... Conn. 71, ... ...
  • Mazurkiewicz v. Dowholonek
    • United States
    • Connecticut Supreme Court
    • 3 Marzo 1930
    ... ... maker when such suit would be fruitless. Allen v ... Rundle, 50 Conn. 9, 47 Am.Rep. 599; Beitler v ... Rudkin, 104 Conn. 404, 408, 133 A. 214. The complaint ... alleges that the plaintiff is unable, by the exercise of due ... diligence, to ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT