Enterprises, Inc. v. Becker
| Decision Date | 09 April 1980 |
| Docket Number | No. 57507,57507 |
| Citation | 36 Conn.Supp. 213,416 A.2d 183 |
| Parties | ENTERPRISES, INC. v. George W. BECKER et al. |
| Court | Connecticut Superior Court |
Maruzo & Lucas, Norwich, for plaintiff.
Harold M. Lubin, Groton, for named defendant.
John C. Wirzbicki, New London, for defendant Marsha Hamilton.
On or about April 1, 1979, the plaintiff and the defendants Becker and Hamilton entered into a contract whereby the plaintiff agreed to perform certain work for the defendants and the defendants agreed to pay for the work. The plaintiff contracted to perform certain construction repair work on a residence located at the defendants' address.
On September 21, 1979, the plaintiff filed a complaint charging breach of contract by the defendants and alleging, in effect, that the defendants, in fact, did not own the premises at the time of the execution of the contract but were only renting the premises, and that the owner and the defendants have refused to permit the plaintiff to perform the contract. The plaintiff further alleges that it has been ready, willing and able to perform all the obligations on its part called for by the contract.
On November 30, 1979, the defendants filed a motion to dismiss this action. The defendants argue that the contract in question was subject to the provisions of the Home Solicitation Sales Act; General Statutes §§ 42-134 42-143; and that the contract failed to comply with the requirements of § 42-136(b) of the General Statutes. The defendants claim that the failure to comply with the statute deprives the court of subject matter jurisdiction, and that the action should be dismissed.
The motion claims that the contract involved falls under the Home Solicitation Sales Act, and yet fails to include a mandatory provision on its face. A careful reading of the statute leads one to the conclusion that this contract does fall within it. Contrary to the claims of the defendants, however, the contract did not need to comply with § 42-136(b) of the General Statutes, entitled "Note or evidence of indebtedness given by buyer," which reads as follows:
The intent of this provision of the Home Solicitation Sales Act was to restrict negotiable notes in consumer transactions. The problem facing the legislature was that third parties, usually financing institutions, obtained these consumer notes as holders in due course and thus cut off all of the personal defenses of the consumer when they sued to collect money due under the notes.
The conditional sale contract in this case is not a note or other evidence of indebtedness. Cases which discuss this point are compiled in "Commercial Paper," 44 A.L.R.2d 8, 92. The term "evidence of indebtedness" refers to a check, order, draft bond, security or certificate of investment. Although not limited to a promissory note or other simple acknowledgment of a debt owing, an evidence of indebtedness must include a contractual obligation to pay in the future for consideration presently received. See United States v. Austin, 462 F.2d 724 (10th Cir.).
In this case the conditional sale contract signed by the buyer does not include a contractual obligation to pay in the future for a consideration presently received. The contract merely contains a binding bilateral promise for the buyer to pay when consideration has been received. The buyer is not obligated to pay anything under this contract until each installment has been completed by the seller. This contract is also not a note or negotiable instrument as defined by the Uniform Commercial Code; § 42a-3-104(1) of the General Statutes; which reads as follows: "Any writing to be a...
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