L. Suzio Concrete Co. v. Birmingham Construction Services Co.
L. Suzio Concrete Co. v. Birmingham Construction Services Co.
Opinion of the Court
Opinion
This case involves an action brought by the plaintiff, L. Suzio Concrete Company, Inc., to recover a balance due for concrete building materials furnished to the defendant Birmingham Construction Services Company, Inc. (Birmingham), pursuant to a credit agreement, which the defendant David Cassetti signed as a guarantor.
By way of a five count amended complaint dated March 28, 2001, the plaintiff brought the present action, seeking to recover a balance due on an open account for materials it furnished to Birmingham between May and November, 1998, pursuant to the credit agreement. The first two counts of the amended complaint were directed against Birmingham, and the remaining three counts were directed against the defendant. The defendant filed an answer, special defenses and a counterclaim. The court dismissed the two counts of the amended complaint directed against Birmingham, two of the counts directed against the defendant and the defendant’s counterclaim, leaving only the third count of the amended complaint for disposition.
The defendant first claims that the court improperly determined that he was liable as a guarantor because, he asserts, the continuing guarantee was no longer effective. Specifically, he argues that it was unreasonable to impose liability on him pursuant to the guarantee after he left Birmingham in October, 1995. We disagree.
“An offer for a continuing guarantee] is ordinarily effective until revoked by the guarantor or extinguished by some rule of law. ... To revoke a continuing guarantee], the guarantor usually must give notice of the revocation to the creditor. . . . However, [e]ven a continuing guarantiee] that is, in terms, unlimited as to duration, imposes liability upon a guarantor only for such period of time as is reasonable in fight of all the circumstances of the particular case. . . . The interpretation of a continuing guarantiee], as well as the question of its revocation, ordinarily is a question of fact.” (Citations omitted; internal quotation marks omitted.) Associated Catalog Merchandisers, Inc. v. Chagnon, 210 Conn. 734, 742-43, 557 A.2d 525 (1989). “Our review of the factual findings of the trial court is limited to a determination of whether they are clearly erroneous. ... A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Internal quotation marks omitted.) Ridgefield v. Eppoliti Realty Co., 71 Conn. App. 321, 328, 801 A.2d 902, cert. denied, 261 Conn. 933, 806 A.2d 1070 (2002).
In its memorandum of decision, the court stated: “The defendant argues that the court should look to the intention of the parties for the duration of the guarantee. The guarantee in question has no termination date, but gives the guarantor, the defendant, the right of revocation. He chose not to exercise that right, even though he sold his shares in 1995, four years after executing the guaraní [ee], and a schedule attached to his stock sale agreement listed the plaintiff as a creditor of the company from which [he] was withdrawing. . . . The fact that the plaintiff did not review the guarantee each time it extended credit is of no moment. Such guarantee clauses are usually in repose until they are resorted to in case of a default.”
We conclude that in light of all the evidence and circumstances of this case, it was not unreasonable to impose liability on the defendant as the guarantor of the security agreement. The guarantee expressly provided the defendant with the right to revoke the guarantee in writing, but he failed to exercise that right. Also, the defendant did not keep himself informed as to his liability under the guarantee. See Connecticut National Bank v. Foley, 18 Conn. App. 667, 673-74, 560 A.2d 475 (1989); see also Hartford-Aetna National Bank v. Anderson, 92 Conn. 643, 648, 103 A. 845 (1918) (guarantor’s failure to keep himself informed as to his liability under guarantee constitutes sufficient ground to hold guarantor liable). Moreover, as the court stated, this is
After reviewing the entire record, we conclude that the court’s determination that it was reasonable to impose liability on the defendant under the guarantee, despite the fact that he had left Birmingham in October, 1995, is not clearly erroneous.
II
The defendant next claims that it was improper for the court to fail to find that the plaintiff did not mitigate its damages with respect to the defendant, which the defendant contends the plaintiff was obligated to do by law. The defendant appears to argue that because one of the plaintiffs employees testified that he knew the defendant had left Birmingham,
We do not agree with the defendant that the plaintiff was obligated to notify the defendant of his exposure pursuant to the guarantee under the circumstances in this case. The defendant would have us, in essence, shift to the plaintiff the defendant’s burden of keeping himself informed as to his liability under the continuing
Ill
The defendant next claims that the court improperly determined that the credit agreement did not limit his liability to $5000. Specifically, he argues that the language in the agreement, “Monthly credit limit required: $5000,” is ambiguous and that the court should have resolved the ambiguity in his favor by determining that the language limited his liability under the credit agreement to $5000. We disagree.
The governing law applicable in this case is well established. “Although ordinarily the question of contract interpretation, being a question of the parties’ intent, is a question of fact . . . [w]here there is definitive contract language, the determination of what the parties intended by their contractual commitments is a question of law. ... A contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction. . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract. . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms. A court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the con
In applying that law to the facts of the present case, we, like the trial court, conclude that the language, “Monthly credit limit required: $5000,” is clear and unambiguous. In its memorandum of decision, the court stated in relevant part: “The figure of $5000 was inserted by [the defendant], who now claims he understood this to be the limit of his liability. . . . [T]here is no ambiguity to resolve. The language clearly sets forth what the credit applicant anticipates his needs will be ... in effect [the applicant] is saying, 1 anticipate needing $5000 a month in credit.’ ” (Emphasis added.) We agree with the court that the language, which is in the informational portion of the credit agreement, clearly represented an estimate of what Birmingham anticipated it needed in terms of monthly credit and not a limit of Birmingham’s liability.
IV
Finally, the defendant claims that the court improperly failed to find that there was no binding contract between the plaintiff and Birmingham because there was no “meeting of the minds.” He contends that because there was no “meeting of the minds” giving rise to a binding credit agreement, he should not have been found hable as a guarantor of that agreement.
The judgment is affirmed.
In this opinion the other judges concurred.
Birmingham is not involved in this appeal. We therefore refer in this opinion to Cassetti as the defendant.
The defendant did not include a statement of issues in his appellate brief. We have interpreted his claims, therefore, in a manner consistent with the arguments and analyses presented in his brief.
The court dismissed the first two counts, which were directed against Birmingham, because the plaintiff failed to prosecute those claims. The court dismissed the fourth and fifth counts, which were directed against the defendant, because they were duplications of the third count, and it dismissed the defendant’s counterclaim because no evidence was offered in support thereof.
The court rendered judgment for the plaintiff in the amount of $9562.56 plus interest of $3944.52. As the credit agreement provided for the recovery of reasonable attorney’s fees, the court also awarded the plaintiff $8467 in fees and stated that the defendant would be given an opportunity to contest that award. Following postjudgment proceedings on that and other issues, the court increased the award of attorney’s fees to $9747.57.
We note that the court specifically found that although “[t]he [plaintiffs] employee testified that he spoke to . . . Kane, who told him [that] he and his partner were splitting up ... he didn’t know [the defendant] was the partner.”
We note that Leonardo H. Suzio, a principal in the plaintiff corporation, testified at trial that the purpose of the “monthly credit limit required” information on the credit application was “to get an estimate from the customer of how much they think they’re going to charge on a monthly basis.”
In his appellate brief, the defendant appears to concede that his claim was not distinctly raised before the trial court.
Reference
- Full Case Name
- L. SUZIO CONCRETE COMPANY, INC. v. BIRMINGHAM CONSTRUCTION SERVICES COMPANY, INC.
- Cited By
- 1 case
- Status
- Published