Coelm v. Imperato

• Decision Date: 04 October 1990
• Docket Number: No. 8759,8759
• Citation: 579 A.2d 573,23 Conn.App. 146
• Court: Connecticut Court of Appeals
• Parties: COELM v. Frank IMPERATO.

Page 573

579 A.2d 573

23 Conn.App. 146

COELM v. Frank IMPERATO.

No. 8759.

Appellate Court of Connecticut.

Argued June 11, 1990.

Decided Sept. 4, 1990.

Certification Denied Oct. 4, 1990.

Joshua A. Winnick, with whom, on the brief, was Edward B. Winnick, New Haven, for appellant (plaintiff).

Frank B. Velardi, Jr., New Haven, for appellee (defendant).

Before DUPONT, C.J., and NORCOTT and FOTI, JJ.

FOTI, Judge.

The plaintiff, Coelm, a Connecticut partnership, brought this action to recover the balance due on the defendant's account with the plaintiff's predecessor in interest, Elm City Filling Stations, Inc. (Elmco), after Elmco assigned its accounts receivable to the plaintiff. The plaintiff appeals from the trial court's judgment, after a court trial, for the defendant. On appeal, it makes four claims arguing that the trial court improperly (1) precluded testimony, (2) refused to grant a continuance, (3) acted prejudicially, and (4) denied its motion for a new trial. Because the first issue raised by the plaintiff is dispositive and leads us to reverse the trial court's decision, it is unnecessary to reach the remaining issues.

The facts are not in dispute. The complaint in this collection action alleges that in late 1982 Elmco delivered goods, wares, materials or merchandise valued at $116,415.55 to the defendant and that Elmco was dissolved and its accounts receivable were assigned to the plaintiff on or about January 1, 1983. The complaint further alleges that, despite the plaintiff's demands, the defendant has failed to pay all but $2300 of the amount due and owing.

At trial the plaintiff presented two witnesses. The first witness, Mary Ann McIntire, was the bookkeeper and the person in charge of Elmco's office. She testified that the debt owed Elmco by the defendant was $75,393.39.

The second witness, Sidney J. Horton, was the president of Elmco and a member of its board of directors before that company was dissolved. Horton testified that he was the president, but not a shareholder of Elmco, and that he had presided over that company's dissolution in January, 1983. The defendant objected to Horton's testimony at this point and argued that because Horton had not been a shareholder in Elmco, he was not qualified to testify. The court overruled this objection and allowed Horton to continue testifying.

Horton then testified that when Elmco was dissolved all of its assets were sold off, except the accounts receivable. He stated that his wife, Arnold Alderman and Alderman's wife had formed Coelm, to which Elmco's accounts receivable were assigned. The defendant again objected to Horton's testimony and moved that it be stricken because Horton owned neither Elmco nor Coelm. At the court's suggestion, the defendant rephrased his argument and objected on the ground that Horton's testimony was not the best evidence. ¹ The defendant asserted that the "certificate of purchase [and] the minutes of the corporation reflecting [the purchase]" would be the best evidence to prove that Elmco's accounts receivable had been assigned to Coelm. The court sustained the defendant's second objection and, in spite of repeated efforts by the plaintiff to explain that Horton's firsthand knowledge was a sufficient basis for his testimony, ² the court struck Horton's testimony on the ground that the best evidence would be the corporation's records.

After a short recess the plaintiff moved for a continuance to allow it to collect certain corporate records. The defendant again objected and the court denied the plaintiff's motion on the grounds that "[e]verybody said they were ready."

When further questioning of Horton resulted in the same objections and the same rulings, the parties rested, and the court granted the defendant's request for a directed verdict, ³ rendering judgment for the defendant, on two stated grounds. The first ground stated by the court was that the plaintiff failed to prove any relationship between itself and the defendant, Frank Imperato, or between Frank Imperato and Frank's Gas and Service Station. ⁴ The court's second stated ground was that the plaintiff failed to prove that the debt had been assigned from Elmco to the plaintiff, Coelm.

As defined by our Supreme Court, the best evidence rule forces a party to produce the original writing, if it is available, when the terms of that writing are material and must be proved. Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 10, 513 A.2d 1218 (1986); see also C. McCormick, Evidence (3d Ed.1984) § 230. "The best evidence rule typically applies when attempting to prove the contents of ' "instruments such as deeds, wills or contracts, where a slight variation of words may mean a great difference in rights." ' Brookfield v. Candlewood Shores, Estates, Inc., supra, 201 Conn. at 10-11, 513 A.2d 1218, quoting C. McCormick, supra, § 231. The ' "basic premise justifying the rule is the central position which the written word occupies in the law." ' Brookfield v. Candlewood Shores Estates, Inc., supra, 201 Conn. at 10, 513 A.2d 1218, quoting C. McCormick, supra." Morales v. Saint Francis Hospital & Medical Center, 9 Conn.App. 379, 382, 519 A.2d 86 (1986).

The best evidence rule is not applicable to this case. "Where one testifies to what he has seen or heard, such testimony is primary evidence regardless of whether such facts are reduced to writing. While recordings might be more accurate and reliable evidence under ordinary circumstances than testimony from memory, the latter is not rendered incompetent by the fact of the existence of the former." State v. Moynahan, 164 Conn. 560, 583, 325 A.2d 199, cert. denied, 414 U.S. 976, 94 S.Ct. 291, 38 L.Ed.2d 219 (1973).

In the matter at hand, Horton, as president of Elmco, could testify as to corporate acts done by him, or in his presence. Such testimony would be primary evidence. Under the present circumstances, Horton's testimony as to the dissolution of Elmco and its assignment of its accounts receivable to Coelm was competent evidence. See Royal Sundry Co. v. Railroad Salvage of Connecticut, Inc., 39 Conn.Sup. 430, 434, 466 A.2d 340 (1983). The existence or exact terms and contents of the corporate records were not in issue. The corporate documents were only collaterally involved. The best evidence rule does not apply where the contents of a writing are only collaterally involved. C. Tait & J. LaPlante, Connecticut Evidence § 10.9.

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other Judges concurred.

1 After the defendant's second objection, the following exchange took place:

"Mr. Lasala: It is my point, Your Honor, that the witness as the president of the company cannot testify as to any corporation--

"The Court: Is your objection it is not the best evidence?

"Mr. Lasala: That's correct, Your Honor.

"The Court: On that ground it is sustained.

"Mr. Winnick: Your Honor, may I be heard on that.

"The Court: You can be heard but...