General Products Co., Inc. v. Bezzini

• Decision Date: 04 June 1976
• Docket Number: No. 75,75
• Court: Connecticut Superior Court
• Parties: , 20 UCC Rep.Serv. 696 GENERAL PRODUCTS COMPANY, INC. v. Richard BEZZINI.

Page 843

365 A.2d 843

33 Conn.Supp. 654, 20 UCC Rep.Serv. 696

GENERAL PRODUCTS COMPANY, INC. v. Richard BEZZINI.

No. 75.

Superior Court of Connecticut, Appellate Session.

Argued March 10, 1976.

Decided June 4, 1976.

Samuel H. Teller, East Hartford, for appellant (defendant).

George E. Tillinghast, Jr., Hartford, for appellee (plaintiff).

DAVID M. SHEA, Judge.

The trial court found the following facts: On May 11, 1973, the defendant and his wife appointed Alfred A. Cadoret their attorney under a written power authorizing him to 'transact for me all and every kind of business whatever; to purchase or sell for me, in my name, all kinds of property, real and personal; to sign my name to any note, mortgage, bond, check, draft, deed, stock proxy, automobile title, bank withdrawal form, or any instrument whatsoever situate and to bind me thereby in as full and complete manner as I myself could do, were I personally present and signing the same. . . .' Cadoret had the power of attorney in his possession for about two months and he did purchase some land in Florida for the defendant.

The plaintiff had been selling bifold doors and other items to Gator Doors, Inc., a Florida corporation, hereinafter referred to as Gator Doors, and, in June, 1973, there was a balance of $2131.32 owing to the plaintiff on that account. After a meeting between several officers of the plaintiff corporation and the president of Gator Doors, it was agreed that a promissory note in the amount of $11,079.32 would be prepared, that amount representing the balance for previous shipments and an additional sum for a new shipment of doors. At the meeting it had been indicated that the defendant, Cadoret, and another person owned half of the company and that the plaintiff expected the defendant to sign the note as a guarantor. A note, prepared by the plaintiff, was forwarded to Gator Doors and was executed in its behalf by its president. It was also signed 'Richard Bezzini by Alfred A. Cadoret' and 'Alfred A. Cadoret, power of attorney for Richard Bezzini.' A copy of the power of attorney given to Cadoret was attached to the note when it was returned to the plaintiff.

The plaintiff never made any further shipments to Gator Doors. After the note was received and prior to shipment, the comptroller of the plaintiff corporation contacted the defendant for the first time and learned that there was a dispute regarding the note and the power of attorney.

The trial court found that Cadoret was authorized to sign the note in behalf of the defendant as a guarantor. It also concluded that the defendant had failed to deny his signature on the note specifically in the pleadings and, consequently, the signature was deemed to have been admitted.

The Uniform Commercial Code, General Statutes § 42a-3-307(1), provides that '(u)nless specifically denied in the pleadings each signature on an instrument is admitted. . . .' A similar requirement may be found in General Statutes § 52-93 and in Practice Book § 116 where 'the defendant intends to controvert . . . the execution or delivery of any written instrument . . ..' The official comment on that section of the Uniform Commercial Code declares that the 'purpose of the requirement of a specific denial in the pleadings is to give the plaintiff notice that he must meet a claim of forgery or lack of authority as to the particular signature, and to afford him an opportunity to investigate and obtain evidence.' Uniform Laws Annotated, Uniform Commercial Code, § 3-307.

The complaint contained an allegation that 'the defendant, by his note made jointly with Gator Doors, Inc., promised to pay to the order of the plaintiff the principal sum. . . .' The answer of the defendant consisted of a general denial of the complaint and included a special defense that the note 'was signed under a purported power of attorney which was obtained by misrepresentation and fraud, and was revoked prior to the execution of said note.' Although the defendant overlooked the distinction between a specific denial and a special defense; Practice Book §§ 116-118, 120; 1 Stephenson, Conn.Civil Proc. (2d Ed.) § 126e; it is apparent that the facts stated in his special defense sufficiently apprised the plaintiff that the effectiveness of the defendant's signature on the note was contested. In cases under § 52-93 and § 116 where admissions have been found, there have been no special defenses raising the issue of due execution or authority. Woronieki v. Pariskiego, 74 Conn. 224, 226, 50 A. 562; Jacobs v. Hogan, 73 Conn. 740, 741, 49 A. 202; Garland v. Gaines, 73 Conn. 662, 665, 49 A. 19. Furthermore, it does not appear that any objection was made by the plaintiff to the evidence introduced in support of the special defense raising lack of authority as an issue. When the defendant failed to object upon the ground of variance or improper pleading, 'he waived his right subsequently to insist upon the rule.' Gorski v. Zitkov, 104 Conn. 338, 340, 132 A. 912, 913. We therefore disagree with the conclusion of the trial court that the defendant must be deemed to have admitted the effectiveness of the signature.

The plaintiff also relies upon an additional provision of § 42a-3-307(1) that, even where the effectiveness of a signature has been put in issue, '(a) the burden of establishing it is on the party claiming under the signature; but (b) the signature is presumed to be genuine or authorized except where the action is to enforce the obligation of a purported signer who has died or become incompetent before proof is required.' The official comment states that 'until some evidence is introduced which would support a finding that the signature is forged or unauthorized the plaintiff is not required to prove that it is authentic.' Uniform Laws Annotated, Uniform Commercial Code, § 3-307. There is no question but that there was sufficient evidence to indicate that the signature of the defendant on the note by Cadoret was unauthorized. Once that evidence was introduced, the ultimate burden of persuasion was upon the plaintiff. Ibid.; see ...