Mazurkiewicz v. Dowholonek

Decision Date03 March 1930
CourtConnecticut Supreme Court
PartiesMAZURKIEWICZ v. DOWHOLONEK ET AL.

Appeal from City Court of Hartford; Herbert A. Ross, Judge.

Action by William J. Mazurkiewicz as the holder of a note against Peter Dowholonek, Walenty Blaszczyk, and Gustawa Blaszczyk maker and indorsers. A demurrer to the complaint was sustained, and judgment rendered in favor of the last two named defendants, and plaintiff appeals.

Error and cause remanded.

Retrospective legislation is not unlawful in itself.

Emanuel G. Goldstein, of Hartford, for appellant.

William M. Harney, of Hartford, for appellees.

Argued before WHEELER, C.J., and MALTBIE, HAINES, HINMAN, and BANKS, JJ.

BANKS J.

The amended complaint alleged that the defendant Dowholonek executed a mortgage note dated November 21, 1925, in the sum of $2,600, payable to the defendants Walenty Blaszczyk and Gustawa Blaszczyk, or order, in installments as stated therein, with interest at six per cent. " together with any and all lawful taxes which may be assessed on said principal sum," that the defendants Blaszczyk, on January 16, 1926, indorsed and assigned the note to the plaintiff for value, and that it was due and unpaid. The complaint contained no allegation of presentment to the maker, but alleged that the plaintiff was unable, by the exercise of due diligence, to collect the note from the maker since the latter did not possess sufficient assets to satisfy the note. The defendants Blaszczyk demurred to the complaint upon two grounds, first, that there was no allegation of presentment of the note, and second, that it did not appear from the allegations of the complaint that plaintiff had exercised due diligence in attempting to collect the note from the maker. The court sustained the demurrer upon the first ground, and, the plaintiff having failed to plead over or to prosecute the action against the defendant Dowholonek, rendered judgment in favor of the defendants Blaszczyk.

With certain exceptions not here involved, presentment of a negotiable promissory note for payment is necessary in order to charge the indorsers. General Statutes, § 4428. The first ground of demurrer is based upon the assumption that the note here involved is a negotiable instrument. Section 4359, of the General Statutes, provides among other essentials that an instrument to be negotiable " must contain an unconditional promise or order to pay a sum certain in money." In Mechanics' Bank v. Johnson, 104 Conn. 696, 134 A. 231, we held that a provision in a note for the payment of taxes assessed upon the principal of the note renders the sum uncertain and the note nonnegotiable. Chapter 240 of the Public Acts of 1927, enacted since the decision in Mechanics' Bank v. Johnson and since the execution and indorsement of this note, provides as follows: " The sum payable, in the case of a negotiable instrument, is a sum certain within the meaning of chapter 225 of the general statutes, although it is to be paid * * * with provision for payment by the maker of taxes levied or assessed upon the instrument or the indebtedness evidenced thereby." It must be presumed that the Legislature intended this statute to operate prospectively and so to apply only to instruments executed subsequent to the date of its enactment. Humphrey v. Gerard, 83 Conn. 346, 352, 77 A. 65; O'Connor v. Hartford Accident & Ind. Co., 97 Conn. 8, 17, 115 A. 484. It cannot therefore affect the character of the note here involved. The Legislature also enacted at the same session a statute which reads as follows: " Any mortgage note in which it shall have been stipulated that the mortgagor shall pay to the mortgagee or the holder of such note, all taxes, assessments and insurance or shall pay to the mortgagee or holder of such note, all taxes which may be assessed upon such note, and which is otherwise valid, is validated and confirmed as to the amount of the principal of such note, and the negotiability of such note is validated and confirmed. Any mortgage deed securing the payment of any such mortgage note and any assignment thereof are validated." Public Acts of 1927, c. 146. Relying upon this statute the defendants contend that the note here in question, which is a mortgage note, must be held to be a negotiable instrument, and that the defendants cannot be charged as indorsers in the absence of allegation and proof of its presentment to the maker for payment. The contention of the plaintiff is that the rights and obligations created by the indorsement of this note cannot be altered by subsequent legislation which, in so far as it attempts to do so, is claimed to be unconstitutional.

While the language of this act leaves much to be desired in the way of clarity, the intention fairly deducible from it would seem to be to provide that any mortgage note theretofore executed which possessed the characteristics of a negotiable instrument, except that it contained a provision for the payment of taxes, assessments and insurance, should be deemed to be a negotiable instrument. If this is the correct meaning to be ascribed to the act the result effected is to make the provisions of chapter 240 of the Public Acts of 1927, retroactive in so far as they apply to notes secured by mortgage, thus making such notes, whether executed before or after such legislation, negotiable instruments although containing such provision for the payment of taxes. The act is not subject to attack because it is retrospective in its operation. Such legislation is not of itself unlawful. Atwood v. Buckingham, 78 Conn. 423, 62 A. 616; Curtis v. Whitney, 13 Wall. 68, 20 L.Ed. 513. Validating acts in their very nature are retrospective, but cannot be said to impair the obligation of the contract which they affect since their very purpose and effect is to give it validity. It will be observed that the act is quite distinct in purpose and effect from the usual type of validating acts so-called. Such acts are usually enacted to cure or validate errors or irregularities in legal or administrative...

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7 cases
  • Schieffelin & Co. v. Department of Liquor Control
    • United States
    • Connecticut Supreme Court
    • 7 Agosto 1984
    ...to note at the outset that the mere fact that a statute is retrospective does not in itself render it invalid. Mazurkiewicz v. Dowholonek, 111 Conn. 65, 68, 149 A. 234 (1930); Atwood v. Buckingham, 78 Conn. 423, 427, 62 A. 616 (1905). Thus, General Statutes § 55-3, which provides that "[n]o......
  • Sanger v. City of Bridgeport
    • United States
    • Connecticut Supreme Court
    • 8 Abril 1938
    ... ... irregular, or to make valid and obligatory an instrument ... which because of some defect was invalid and ... inoperative.’ Mazurkiewicz v. Dowholonek, 111 ... Conn. 65, 69, 149 A. 234, 236. Remedial statutes may be ... retrospective in operation provided they do not impair ... ...
  • Piascyk v. Malon
    • United States
    • Connecticut Supreme Court
    • 21 Marzo 1933
    ... ... Mechanics' ... Bank v. Johnson, 104 Conn. 696, 700, 134 A. 231; ... Schumacher v. Miller, 111 Conn. 568, 569, 150 A ... 524. In Mazurkiewicz v. Dowholonek, 111 Conn. 65, ... 149 A. 234, we held that chapter 146 of the Public Acts of ... 1927, which purported to validate and confirm the ... ...
  • Maloney v. Moore
    • United States
    • Arizona Supreme Court
    • 9 Diciembre 1935
    ... ... contract, which may not be done. Dillingham v ... Hook, 32 Kan. 185, 4 P. 166; Mazurkiewicz ... v. Dowholonek, 111 Conn. 65, 149 A. 234; ... Green v. Biddle, 8 Wheat. 1, 84 5 L.Ed ... 547, [46 Ariz. 458] 568. Defendant, however, is not ... ...
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