Senior v. Hope

• Decision Date: 30 January 1968
• Citation: Senior v. Hope, 239 A.2d 486, 156 Conn. 92 (Conn. 1968)
• Court: Connecticut Supreme Court
• Parties: John L. SENIOR, Jr. v. S. Djana HOPE et al.

Page 486

239 A.2d 486

156 Conn. 92

John L. SENIOR, Jr. v. S. Djana HOPE et al.

Supreme Court of Connecticut.

Jan. 30, 1968.

Warren W. Eginton, Stamford, with whom, on the brief, was Raymond T. Benedict, Stamford, for appellant (third-party plaintiff).

Robert A. Slavitt, Norwalk, with whom, on the brief, was Abraham D. Slavitt, Norwalk, for appellees (third-party defendants).

Before ALCORN, HOUSE, COTTER, THIM and RYAN, JJ.

ALCORN, Associate Justice.

The plaintiff brought this action pursuant to § 52-102a of the General Statutes. The portions which are material to the issue before us appear in the footnote. ¹ Two defendants are named in the action, one of whom, David Katz and Sons, Inc., demurred to the complaint on the ground that the action was premature. The trial court sustained the demurrer, the plaintiff failed to plead over, and judgment was rendered in favor of that defendant. The plaintiff has appealed from the judgment.

The complaint alleges that the plaintiff made a written agreement with the two defendants, a copy of which is annexed to and made a part of the complaint. The agreement recited, in substance, that the plaintiff was about to enter into an option agreement for the sale of real estate to John F. Aird, or his assignee, in which transaction the plaintiff recognized the defendants as the brokers or agents and agreed to pay them a stated commission when the sale was fully effectuated. The agreement further recited, in substance, that in the option agreement Aird undertook to indemnify the plaintiff and hold him harmless from any claim by any other broker or agent arising out of the transaction and that, although Aird, on delivery of written notice to the plaintiff, might assign his option, the assignee, by his acceptance of the assignment, would become jointly and severally liable with Aird under the option agreement. The defendants agreed with the plaintiff that 'in order to further assure the * * * (plaintiff) against any possible liability for more than the one full commission specified in this agreement,' in the event that either Aird or George W. Bossert, to whom the option agreement had that day been assigned, 'shall in any way fail to save and hold harmless the * * * (plaintiff) from any claims, causes of action, demands, loss, cost or expense (including a reasonable attorney's fee), arising out of any claim against the * * * (plaintiff) made by any person not a party to this agreement for commission arising out of this transaction, then and in such event the * * * (defendants) jointly and severally agree that they will so hold harmless the * * * (plaintiff) from any such claim and will defend, at their own cost and expense any action against the * * * (plaintiff) seeking a commission arising out of this transaction instituted against the * * * (plaintiff) by any person not a party to this agreement.'

The complaint then alleged, in substance, that the plaintiff had been sued by William S. Pitt, Jr., who claimed to be entitled to a commission arising out of the sale of the plaintiff's property; that the plaintiff had already paid a commission to the defendants pursuant to his agreement with them; and that, pursuant to that agreement, he looked to them for payment of any judgment which might be rendered against him in Pitt's action, with reasonable attorneys' fees and costs of defense.

The demurrer by the defendant corporation asserted that the cause of action stated was premature because (1) the corporation's obligation to the plaintiff was conditioned on the failure of Aird and Bossert to indemnify the plaintiff and (2) there was no allegation in the complaint of such a failure.

The trial court sustained the demurrer on the ground that the defendants had agreed to indemnify the plaintiff against loss so that liability would arise only on proof of loss and because it interpreted the words 'or (who) may be liable' as used in the statute to mean a person upon whom liability would fasten as a result of facts proved on the issues in the original trial. The court concluded that, because any failure of Aird or Bossert to indemnify the plaintiff would not be a factual issue in that trial, the attempt to implead the defendant corporation was premature.

A demurrer tests whether the allegations of a complaint state a good cause of action. Rutt v. Roche, 138 Conn. 605, 607, 87 A.2d 805. 'A right of action at law arises from the existence of a primary right in the plaintiff, and an invasion of that right by some delict on the part of the defendant. The facts which establish the existence of that right and that delict constitute the cause of action.' Pavelka v. St. Albert Society, 82 Conn. 146, 147, 72 A. 725.

The plaintiff is utilizing a purely statutory procedure authorized by General Statutes § 52-102a. We have not heretofore had occasion to consider the rights conferred by § 52-102a to implead 'a person not a party to the action who is or may be liable' for all or part of a claim made against a defendant in a civil action. The first sentence of the statute, however, finds its counterpart in Rule 14(a) of the Federal Rules of Civil Procedure. Some guidance is thus furnished by the construction given by the federal courts and commentators to the federal rule. The purpose of § 52-102a, like that of Rule 14(a), is clearly to obviate the multiplicity of actions. 3 Moore, Federal Practice (2d Ed.), 14.04. We conclude that, as in the case of Rule 14(a), when § 52-102a permits the impleading of one who 'is or may be liable' for the claim sued on, the purpose and effect of the quoted words is to accelerate the accrual of the right to assert a claim against the impleaded person although it does not affect his ultimate substantive rights. 3 Moore, op. cit. 14.08, and cases cited.

The...