Canton Motorcar Works, Inc. v. DiMartino

• Decision Date: 11 March 1986
• Docket Number: No. 3588,3588
• Citation: 6 Conn.App. 447,505 A.2d 1255
• Court: Connecticut Court of Appeals
• Parties: CANTON MOTORCAR WORKS, INC. v. Jack DiMARTINO et al.

Page 1255

505 A.2d 1255

6 Conn.App. 447

CANTON MOTORCAR WORKS, INC. v. Jack DiMARTINO et al.

No. 3588.

Appellate Court of Connecticut.

Argued Nov. 6, 1985.

Decided March 11, 1986.

[6 Conn.App. 448] Lester Katz, Hartford, for appellants (defendants).

Stacey L. Savin, Hartford, for appellee (plaintiff).

Before DUPONT, C.J., and BORDEN and SPALLONE, JJ.

BORDEN, Judge.

Following a trial to a jury, the trial court directed a verdict for the plaintiff on one of the counts of its complaint, and the jury returned a verdict for the plaintiff on the remaining counts. ¹ The court then rendered judgment for the plaintiff and the defendants appeal. Hereinafter all references to the defendant will refer to the named defendant, Jack DiMartino, except for that portion of this opinion pertaining to claims of error in the court's judgment regarding a surety bond on which the second defendant, Theresa DiMartino, is a surety. In our discussion of the bond, the defendant will be referred to in his capacity as the principal and Theresa DiMartino will be referred to in her capacity as the surety.

On appeal, the defendant assigns the following as error: (1) the trial court's refusal to set aside the verdict on the ground that the plaintiff, a corporation, failed to prove its allegation that it was an assignee of its predecessor, a partnership; (2) the trial court's failure to mark certain proffered items for identification, its imposition of limitations upon the defendant's cross-examination of one of the plaintiff's witnesses and its failure to grant the defendant's motion for mistrial; (3) the court's failure to give a Secondino charge as requested by the defendant; (4) the court's award of interest; and (5) the entry of a directed verdict against both defendants on the bond. We find error on the issues concerning the interest and the directed verdict on the bond. The facts pertaining to each issue are set forth in the discussion of each issue.

I FAILURE OF PROOF OF ASSIGNMENT

We discuss this issue first because, if the defendants prevail on it, a remand with direction to render judgment for both defendants would be required. We find, however, no error. Canton Motorcar Works (CMW) was a partnership engaged in the repair and restoration of foreign automobiles. The two partners of CMW were Leigh Miller and Robert Nederostek. In 1977, the two partners joined with one of their employees, James Kelley, and incorporated the automotive repair and restoration business as Canton Motorcar Works, Inc. The following events, which form the basis of the plaintiff's complaint, took place prior to 1977 and therefore involved only CMW, the partnership. We view these facts in the light most favorable to sustaining the jury's verdict. State v. Failla, 1 Conn.App. 524, 527, 473 A.2d 1233 (1984).

In October, 1975, the defendant visited CMW and informed the partners that he was interested in repairing and restoring his recently acquired 1952 Mercedes Benz coupe convertible. The partners subsequently viewed the car at the defendant's The defendant stopped visiting CMW in February, 1976. By mid-March, CMW had invested approximately $12,000 worth of time and materials in the project and the defendant had paid approximately $6500. CMW attempted to contact the defendant and, upon finally reaching him, scheduled meetings at which the defendant failed to appear. It became apparent to CMW that the defendant had no intention of complying with the contract. Thus, CMW stopped work in March, 1976, and two months later placed the car and parts in storage.

                place of business and gave him a rough estimate of the cost of the work.   A week later, the defendant brought the car to CMW's place of business where it was partially disassembled and fully inspected.   Upon receiving a firm cost estimate of $11,500, the defendant orally agreed to pay that amount and to make periodic payments as the work progressed.   During the ensuing weeks, the defendant visited CMW, observed the work in progress, and made payments.   He became interested in restoration of the car to its original condition, known as concours condition.   Upon discussing the added work that this would entail, he agreed to pay the additional cost of the work.   That amount was $3500, thus increasing the full contract price to $15,000
                

In October, 1978, the plaintiff filed a complaint alleging, inter alia, breach of an express oral contract, quasi contract, and damages based on the plaintiff's storage of the car and its parts. The plaintiff alleged that it was "the successor in interest to and assignee of all assets of a partnership formerly doing business as Canton Motorcar Works...." The complaint further stated: "Canton Motorcar Works, Inc., and its predecessor, Canton Motorcar Works are hereinafter collectively referred to as the 'plaintiff.' " In his answer and counterclaim, the defendant referred to "the plaintiff" without further designating whether he was referring to CMW or CMW, Inc. The defendant's answer, however, pleads insufficient information regarding the allegation that the plaintiff is the assignee and successor in interest of CMW. In his counterclaim, the defendant alleged damages based on the plaintiff's alleged breach of contract. ²

At trial, Miller testified that CMW had been engaged in the business of automobile repair and restoration since 1974. When CMW was incorporated in 1977, it kept the same name, operated out of the same address and carried on the same type of business. In addition, the plaintiff was incorporated by both of the CMW partners. There was no specific evidence introduced of an assignment, by CMW to the plaintiff, of the rights under the contract with the defendant. At the close of all the evidence, the defendant moved for a directed verdict on the ground, inter alia, that the plaintiff failed to prove its allegation that it was the assignee of the claim upon which it was suing the defendant. Upon the trial court's denial of this motion, the defendant moved to set aside the verdict and renewed his claim regarding failure of proof of assignment. This motion was also denied. On appeal, the defendant first claims that the trial court erred by denying the motion to set aside the verdict based on the failure of proof of assignment. We disagree.

There was ample evidence, elicited by both parties, upon which to conclude that the only significant difference between this plaintiff and its predecessor was the change of operating form that the business underwent in 1977. Although the defendant counterclaimed against the corporate plaintiff, we do not construe that as an admission of the plaintiff's right to sue on this contract. The defendant properly pleaded insufficient knowledge regarding the assignment of the claim asserted by the plaintiff; Practice Book § 129; which effectively This issue has not previously surfaced at the appellate level in this state although it has been decided at the trial level. See D.D.J. Electrical Contractors, Inc. v. Nanfito & Sons Builders, Inc., 40 Conn.Sup. 50, 479 A.2d 1250 (1984). We adopt the reasoning of that case, namely, that the situation presented here is analogous to the situation where one corporation succeeds to the business and rights of a predecessor corporation by merger or consolidation. Id., 52, 479 A.2d 1250; see General Statutes § 33-369.

                served as a denial of the plaintiff's right to sue on that claim.   See  Second Exeter Corporation v. Epstein, 5 Conn.App. 427, 429, 499 A.2d 429 (1985).   Therefore, while the factual allegations pertaining to the creation of this plaintiff as a corporate successor to a predecessor partnership have been proven, the issue remains whether, under the facts of this case, it was necessary as a matter of law for the plaintiff to produce additional evidence of an assignment by its predecessor of these particular contract rights
                

General Statutes § 33-369(c) provides in pertinent part: "Upon the effectiveness of a merger or consolidation [of corporations] ... [t]he surviving or new corporation shall thereupon and thereafter ... possess all the rights ... of each of the merging or consolidating corporations; ... and all debts due on whatever account, and all other choses in action ... belonging to or due each of the corporations so merged or consolidated, shall be ... vested in such single corporation without further act or deed." (Emphasis added.) In addition, subsection (b) of that statute provides that upon the effectiveness of a merger or consolidation, "all merging or consolidating corporations parties to the plan of merger or consolidation, except the surviving or new corporation, shall cease." Thus, this legislative mandate, which applies to the merger of corporate business entities, acts automatically to transfer the predecessors' choses in action to its successors, and provides that the former entities, which might otherwise be in a position to assert claims upon those choses in action, cease to exist.

Utilizing this statute as a source of law for application by analogy to the present case, we find ourselves on untraveled but well-charted waters. See, e.g., Landis, "Statutes and the Sources of Law," Harvard Legal Essays (1934). "It is when the colors do not match, when the references in the index fail, when there is no decisive precedent, that the serious business of the judge begins." Cardozo, The Nature of the Judicial Process, p. 21 (1921). "Statutes are now central to the law in the courts, and judicial lawmaking must take statutes into account virtually all of the time ... Hardly ever is a statute now regarded as a candidate for narrow construction because it may be in derogation of the common law. More often, the issue is rather to what extent a statute is itself a source of policy for consistent common law development." (Footnote omitted. Emphasis added.) Peters, "Common Law Judging in a Statutory World: An Address," 43 U.Pitt.L.Rev. 995, 998 (1982); see...