State Nat. Bank of Connecticut v. Dick
| Decision Date | 21 March 1973 |
| Court | Connecticut Supreme Court |
| Parties | The STATE NATIONAL BANK OF CONNECTICUT v. Jack R. DICK et al. |
George W. Scott, Jr., Greenwich, with whom were Edwin J. O'Mara, Jr., Greenwich, and, on the brief, Brian T. O'Connor, Greenwich, for appellant-appellee (plaintiff).
Sidney Vogel, Norwalk, for appellees-appellants (named defendant and others).
Before HOUSE, C.J., and SHAPIRO, LOISELLE, MacDONALD and BOGDANSKI, JJ.
In this action the plaintiff, State National Bank of Connecticut, sought a foreclosure of a mortgage on three parcels of land which were owned by the defendants Jack R. Dick and Lynda Dick and contained 21.914 acres located off Round Hill Road in Greenwich, Connecticut. From a judgment rendered for those defendants, hereinafter called the defendants, the plaintiff has appealed to this court, and the defendants have filed a cross appeal.
In its first assignment the plaintiff claims error in the court's refusal to find four paragraphs of its draft finding, asserting that these paragraphs have been found in the court's finding in the cross appeal and are also either admitted or undisputed. We find merit to this claim and the requested additions are granted. The plaintiff's second assignment alleges error in the court's refusal to find eleven paragraphs of its draft finding, on the ground that they were either admitted or undisputed. In connection with this assignment of error, we examine the pleadings. The evidence as printed in the appendices to the briefs, and the exhibits introduced into evidence and certified to this court. The exhibits so certified do not become a part of the finding but are available in a proceeding to correct it. See Goldblatt v. Ferrigno, 138 Conn. 39, 42, 82 A.2d 152. On examination, we find that the plaintiff's exhibit G and the defendants' exhibit 9 are both material to this assignment of error. Exhibit G is the plaintiff's letter of commitement, dated January 14, 1969, setting forth the terms of the $500,000 mortgage loan as being on demand with interest at '1/2% above our prime, which rate shall be adjusted from time to time based upon any fluctuation in the rate,' and secured by a mortgage of property at Round Hill Road, Greenwich, consisting of approximately twenty-two acres. The commitment was accepted, approved and signed by the defendants. The defendants' exhibit 9 is a liability ledger clearly showing that they were charged for and did pay for each increase in the floating interest rate on a previous $300,000 unsecured loan and the $500,000 secured loan from August 30, 1968, through December 12, 1969. This evidence clearly establishes that the requested paragraphs were either admitted or that their truth was undisputed and they are, therefore, added to the finding. Brauer v. Freccia, 159 Conn. 289, 290, 268 A.2d 645. In its third assignment the plaintiff alleges error in finding three paragraphs in language of doubtful meaning so that their real significance does not clearly appear. We find these requested corrections to be immaterial. Immaterial corrections are not made. Brauer v. Freccia, supra, 293, 268 A.2d 645. In view of our ruling on the third assignment of error, the plaintiff's fourth assignment of error need not be considered.
In the cross appeal the defendants allege error in the court's refusal to find facts set forth in four paragraphs of their draft finding which, they claim, were admitted or undisputed. We find that the first and third of these paragraphs should be included, that the second is immaterial, and that the fourth should be denied. The defendants' second assignment of error challenges the court's finding of a portion of paragraph eight which reads, 'nor does she possess any interest in the premises described in plaintiff's Exhibit I.' This finding is supported by the evidence in the plaintiff's appendix. The remaining assignments of error in both appeals challenge certain conclusions of the court and claim error in the overruling of their claims of law.
The issues pressed in these appeals are whether the court erred (1) in concluding that the evidence established a valid oral agreement postponing the time within which the bank could demand payment of the mortgage loan; (2) in concluding that the bank's mortgage was in all respects a valid lien; and (3) in failing to rule on the defendants' claim that provisions of the Uniform Commercial Code were a bar to the present foreclosure action.
The finding of facts, as corrected, can be summarized as follows: The defendants own three parcels of land containing 21.914 acres, with buildings and improvements thereon, located off Round Hill Road in Greenwich, Connecticut. On August 30, 1968, the plaintiff loaned the defendants $300,000 on an unsecured basis. Between August 30, 1968, and February 26, 1969, while this loan was outstanding, the plaintiff's prime interest rate increased on three occasions and the defendants were notified of each increase. Upon each such notice, the defendants paid, without objection, the interest at the increased rate. As an alternative to the immediate payment of this loan and in exchange for an additional loan of $200,000, the defendants agreed to secure a new loan of $500,000 by a mortgage on the 21.914 acres at Round Hill Road. The terms and conditions of this new loan were contained in a letter of commitment sent to the defendants on January 14, 1969. They agreed to these terms by returning a signed copy of this letter to the bank. The relevant terms and conditions of this loan, as accepted and approved by the defendants, were as follows:
This loan was, as was the previous loan for $300,000, processed by the plaintiff in accordance with its usual procedure for large amount, short-term obligations, with interest charged at the floating rate of one-half of 1 percent above the plaintiff's prime rate. The new loan was evidenced by a note executed by the defendants on February 26, 1969, and secured by a mortgage of the Round Hill property prepared by the defendants' attorney, Charles W. Pettengill. Following each increase in interest on the new loan, the defendants were promptly notified and promptly paid the increased interest rate. In fact, the defendants paid, without objection, interest on the new loan at the rate of 9 percent from June 10, 1969, until December 31, 1969. In April, 1969, the mortgaged property was attached in connection with a suit for $20,000,000 brought against the defendants by Samuel H. Dick, the named defendant's father, and in August, 1969, the named defendant met...
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