Gerber and Hurley, Inc. v. CCC Corp.

• Decision Date: 03 January 1995
• Docket Number: No. 12545,12545
• Citation: 651 A.2d 1302,36 Conn.App. 539
• Court: Connecticut Court of Appeals
• Parties: GERBER AND HURLEY, INC. v. CCC CORPORATION et al.

Page 1302

651 A.2d 1302

36 Conn.App. 539

GERBER AND HURLEY, INC. v. CCC CORPORATION et al.

No. 12545.

Appellate Court of Connecticut.

Argued Sept. 30, 1994.

Decided Jan. 3, 1995.

Marc P. Mercier, Manchester, for appellant-appellee (defendant CCC Corp.).

Elias A. Alexiades, Waterbury, for appellee-appellant (plaintiff).

Before FOTI, HEIMAN and SPEAR, JJ.

FOTI, Judge.

The defendant CCC Corporation (CCC) ¹ appeals from a judgment rendered in favor of This is an action brought in separate counts against CCC and Hector Cyr, alleging payment due and owing for goods sold and delivered on an open account pursuant to a credit agreement. On March 27, 1991, Cyr entered into a credit agreement with the plaintiff. Cyr signed that agreement twice, once as president of CCC and once individually as a personal guarantor of payment on the account. Neither defendant disputed the amount of the debt.

                the plaintiff,[36 Conn.App. 540]  after a trial to the court, for the amount of $111,612.08 together with interest and costs.   The defendant claims that the trial court (1) improperly concluded on the basis of the facts found that a ratification had occurred, (2) applied an improper legal standard for ratification, (3) improperly concluded on the basis of the facts found that apparent authority existed, (4) applied an improper legal standard in determining the existence of apparent authority, and (5) improperly concluded on the basis of the facts found that the plaintiff had acted in good faith.   The plaintiff has cross appealed, alleging that the trial court improperly calculated damages.   We affirm the judgment of trial court on the appeal and reverse the judgment, in part, on the cross appeal
                

The record discloses the following facts. The plaintiff, a Connecticut corporation engaged in the business of selling roofing materials, had been selling goods to General Roofing and Sheet Metal, Inc. (General), on credit. In 1991, sales on credit to General ceased and the plaintiff entered into a credit agreement with CCC, knowing that Cyr, president of CCC, was also president of General. Thereafter, goods were supplied to CCC and the plaintiff issued corresponding invoices to CCC. The credit agreement provided for the payment of interest on the outstanding balance. The outstanding balance at the time of trial was $133,512.82 and the outstanding interest was $32,131.54, totaling $165,644.36. At some point during the transactions, the plaintiff had received three checks totaling $30,000, which were drawn on General's bank account and applied to CCC's outstanding balance pursuant to instructions from Cyr. The plaintiff's complaint sought payment of the amount remaining after deducting the $30,000 payment.

CCC does business as a real estate company. It is authorized, under its certificate of incorporation and bylaws, to transact any lawful business. General is a tenant of CCC, leases equipment from CCC and uses a CCC truck to transport roofing materials. The materials sold to CCC through the credit agreement were used by General.

By its pleading, CCC denied that it owed a debt to the plaintiff, and set forth five special defenses. Two of these special defenses stated the following: (1) "The defendant, Hector Cyr, had no authority to bind CCC Corp. to any credit agreement or make purchases on behalf of CCC Corp. which the plaintiff was aware of at the time the goods described in the complaint were purchased and the credit application was signed"; and (2) "The defendant, CCC Corp., is not a partnership but a corporation and Hector Cyr had no authority to make the purchases described in the complaint or bind the corporation to such a credit agreement."

I THE APPEAL

We begin our analysis with the trial court's finding that CCC ratified the credit agreement and is estopped from denying ratification. ²

Our Supreme Court has frequently held that ratification is defined as "the affirmance by a person of a prior act which did not bind him but which was done or professedly done The defendant argues that the facts found by the court in its memorandum of decision do not support a finding of ratification. The defendant also claims that the trial court made factual errors in finding that CCC knew of Cyr's conduct or had full and complete knowledge of all material facts connected with the sales agreement, and that CCC retained the benefit of the contract. ⁴

                on his account ... [requiring] an acceptance of the results of the act with an intent to ratify, and with full knowledge of all the material circumstances...."  (Citations omitted;  internal quotation marks omitted.)  Russell v. Dean Witter Reynolds, Inc., 200 Conn. 172, 185, 510 A.2d 972 (1986).   In its memorandum of decision, the trial court stated that "[n]otwithstanding Cyr's argument that the materials were ordered for the benefit of General Roofing, the court finds that CCC, with knowledge of the facts, accepted and retained the benefits of the goods and supplies provided by the unauthorized act;  it thereby ratified the credit agreement and will be estopped to deny ratification."   The trial court relied on Perry v. Simpson Waterproof Mfg. Co., 37 Conn. 520 (1871), as authority for its conclusion that CCC is estopped from denying ratification. 3
                

"An appellate court cannot find facts or draw conclusions from primary facts found, but may only review such findings to see whether they might be legally, logically and reasonably found." Katz Realty, Inc. v. Norwalk Fabricators, Inc., 14 Conn.App. 396, 401, 541 A.2d 519 (1988). The duty of providing us with a record adequate to review claims, including those of a factual nature, rests with the appellant. Practice Book § 4061. We cannot guess as to the existence of a factual predicate. State v. Hoeplinger, 27 Conn.App. 643, 647, 609 A.2d 1015, cert. denied, 223 Conn. 912, 612 A.2d 59 (1992).

The trial court did not set forth any facts or reasons to support its conclusion that CCC had ratified the credit agreement. The defendant did not seek an articulation, nor did it seek to correct any finding in the trial court's memorandum of decision. ⁵ While it is the duty of the judge who tried the case to set forth the basis of that decision; Powers v. Powers, 183 Conn. 124, 125, 438 A.2d 845 (1981); if the defendant, as appellant, claims that the court's memorandum of decision lacks a sufficient factual basis or is unclear or incorrect, it is that party's burden to have corrected or perfected that record. It is incumbent on the appellant to take the necessary steps to sustain its burden of providing an adequate record for appellate review. Walton v. New Hartford, 223 Conn. 155, 165-66, 612 A.2d 1153 (1992). Without an adequate record, we can only speculate as to the basis for the trial court's decision. Our role "is not to guess at possibilities, but to review claims based on a complete factual record developed by a trial court." (Internal quotation marks omitted.) State v. Hoeplinger, supra, 27 Conn.App. at 647, 609 A.2d 1015.

Because the defendant has not provided us with an adequate record on which to review its claim, its claim must fail.

II THE CROSS APPEAL

The plaintiff has cross appealed, alleging that the trial court improperly calculated damages. It was established at trial that the outstanding balance owed by the defendant, excluding interest, was $133,512.82. The amount of outstanding interest was $32,131.54. The total debt was determined to be $165,644.36. The trial court awarded the plaintiff $111,612.08, with interest from the time of judgment. The plaintiff claims that the trial court (1) should not have deducted $30,000 from its calculation of the plaintiff's damages and (2) improperly calculated the amount of interest owed. We reverse the judgment in part and affirm it in part.

The plaintiff points out that it had received three checks...