Beizer v. Dictograph Products, Inc.

263 A.2d 93, 6 Conn. Cir. Ct. 28, 1969 Conn. Cir. LEXIS 143
CourtConnecticut Appellate Court
DecidedJune 20, 1969
DocketFile No. CV 3-676-6950
StatusPublished

This text of 263 A.2d 93 (Beizer v. Dictograph Products, Inc.) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beizer v. Dictograph Products, Inc., 263 A.2d 93, 6 Conn. Cir. Ct. 28, 1969 Conn. Cir. LEXIS 143 (Colo. Ct. App. 1969).

Opinion

Dearington, J.

The plaintiff was a payee and holder of a series of thirty-one notes executed by the defendant, and it was alleged in his complaint that these notes had not been paid. The defendant, while admitting the existence of the notes, denied nonpayment and by way of a special defense claimed (1) the Circuit Court lacked jurisdiction and (2) cancelation by way of the acceptance of the indebtedness represented by the notes of a new obligation. After a trial, judgment was rendered for the plaintiff, and the defendant has appealed. In its appeal, [30]*30the defendant has assigned error in the denial of its motion to expunge, in the denial of its motion to correct the finding, and in the conclusions reached by the court.

We first consider the assignment of 'error attacking the court’s finding. There was evidence from which the court could reasonably have found certain facts which the defendant sought to strike. The other corrections claimed, even if made, would neither assist the defendant nor change the result in any way. Taylor v. Taylor, 154 Conn. 340, 341. Moreover, the question of credibility is for the trier. Ibid. The defendant has also attacked each of the four conclusions reached by the court as not being supported by the subordinate facts. The real claim of error, however, relates to a jurisdictional issue. We are satisfied the conclusions have adequate support. We will, however, hereinafter consider the jurisdictional question.

In our consideration of the defendant’s principal assignment of error relating to jurisdiction, a brief background as reflected in the finding is necessary. In October, 1960, the plaintiff sold his business to the defendant. As part of the consideration the defendant delivered to the plaintiff a number of shares of its stock, a subordinated note in the amount of $17,782 and an employment contract for a period of five years or as long as the note remained unpaid. On October 13, 1965, the note remained unpaid and a subordination agreement was entered into by the parties whereby the defendant paid the plaintiff $5000 and issued a series of forty-nine notes maturing in monthly sequences over a period of forty-nine months. Interest on these notes was payable in the same manner (twice a year) as provided for in the original note, which was canceled. The face value of each note varied from $182 to $400, and each note contained a default clause, which [31]*31provided that, upon nonpayment of any note, any or all of the remaining notes, at the election of the holder, shall forthwith become due and payable.1 The nineteenth note was not paid at maturity, and the plaintiff thereupon exercised his option and demanded payment of the remaining notes, numbers twenty through forty-nine.

The plaintiff set forth in his complaint thirty-one counts, each alleging nonpayment of one of these notes and each count contained a separate claim for damages for the note therein set forth. In short, each count alleged a separate and distinct cause of action. The defendant moved to expunge for the reason that the complaint was repetitious and prolix in this respect. Practice Book § 100. The defendant concedes, however, that the jurisdictional issue is the real question on appeal and its adjudication would render the court’s action on the motion to expunge of little significance.

Before reviewing the question of jurisdiction it perhaps should be noted that this issue was raised in the defendant’s special defense. Ordinarily if want of jurisdiction appears on the face of the record, it is properly tested by a motion to erase. Practice Book § 94; Carten v. Carten, 153 Conn. 603, 610; Village Creek Homeowners Assn., Inc. v. Public Utilities Commission, 148 Conn. 336, 339.

The defendant contends that the entire transaction should be construed as one single cause of action and that therefore the plaintiff had but a [32]*32single claim. If so treated the aggregate amount of the several notes ($9782) would exceed the jurisdictional limit ($7500) of the Circuit Court. General Statutes § 52-2a. A single cause of action cannot be split up and divided into a multiplicity of suits for the purpose of defeating the jurisdiction of the court to which the action jurisdictionally belongs. The application of such a rule depends, of course, on whether the court properly considers the several claims to be part of an entire and indivisible claim or actually a series of separate claims. 20 Am. Jur. 2d, Courts, § 164. We are here concerned not with a multiplicity of suits but rather with a multiplicity of counts set forth in one single action. The court concluded that each note was a separate and distinct cause of action founded on contract and in so doing reasoned that such treatment brought the matter within the purview of General Statutes § 52-39.2 This statute provides that, in the event of two or more claims founded on separate contracts, judgment may be rendered on each count in an amount not exceeding the jurisdictional limit, even though the sum total exceeds such limit. Judgment was rendered individually on each count and in no count did the amount so awarded exceed $400.

“No formula has been devised which furnishes a test for determining in all cases what contracts are severable and what are entire. The primary criterion [33]*33for determining the question is the intention of the parties as determined by a fair construction of the terms and provisions of the contract itself, by the subject matter to which it has reference, and by the circumstances of the particular transaction giving rise to the question.” 17 Am. Jur. 2d, Contracts, § 325. Each of the notes in question was separate and distinct in that each contained its own consideration, each matured at a different time, and each contained an acceleration clause which would not affect its character as a promissory note. 11 Am. Jur. 2d, Bills and Notes, § 181. Each note was a unilateral contract. 17 Am. Jur. 2d, Contracts, § 5. While the notes were nonnegotiable since each was subject to a subordination agreement; General Statutes 42a-3-105 (2) (a); each was transferable or assignable. Furthermore, the subordination agreement provided that “[n]one of the new notes will be restricted in any way as to Beizer’s right to make presentment and receive payment as each note comes due.” In accordance with the terms of the acceleration agreement, the plaintiff elected to treat the remaining notes in default and set forth each note as a separate and distinct cause of action in his complaint.

“The general rules governing joinder of causes in civil actions are applicable to actions on bills or notes. ... In accordance with the general rules governing such matters, if a person has two or more separate causes of action on bills or notes against another he may, in the absence of a controlling statute or rule of practice, and subject to the power of the court to order consolidation, bring separate actions, even if a joinder of the separate causes in one action is permissible, as in the case of separate notes given in or growing out of the same transaction all of which have matured; but the owner of a single or entire cause of action or an entire and [34]*34indivisible demand on a bill or note cannot, 'without the consent of the person against whom the cause or demand exists, divide or split that cause of action or demand so as to make it the subject of several actions.” 12 Am. Jur. 2d, Bills and Notes, § 1026, and cases cited.

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Carten v. Carten
219 A.2d 711 (Supreme Court of Connecticut, 1966)
Village Creek Homeowners Assn. v. Public Utilities Commission
170 A.2d 732 (Supreme Court of Connecticut, 1961)
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225 A.2d 196 (Supreme Court of Connecticut, 1966)
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84 A. 97 (Supreme Court of Connecticut, 1912)
Rode v. Adley Express Co., Inc.
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7 Conn. Super. Ct. 247 (Connecticut Superior Court, 1939)
Rosenthal v. Waterbury Companies, Inc.
16 Conn. Super. Ct. 205 (Connecticut Superior Court, 1949)
Kearney v. Fenerty
171 So. 57 (Supreme Court of Louisiana, 1936)
Burritt v. Belfy
47 Conn. 323 (Supreme Court of Connecticut, 1879)
Goodrich v. Stanton
42 A. 74 (Supreme Court of Connecticut, 1899)
Lewis v. Rosen
181 A.2d 592 (Supreme Court of Connecticut, 1962)
Chapin v. Chapin
229 A.2d 548 (Supreme Court of Connecticut, 1967)

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Bluebook (online)
263 A.2d 93, 6 Conn. Cir. Ct. 28, 1969 Conn. Cir. LEXIS 143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beizer-v-dictograph-products-inc-connappct-1969.