Klun v. Landers, No. Cv 0584702 (Nov. 14, 2000)

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

MEMORANDUM OF DECISIONThe plaintiff, Frances Klun, sues to collect on four promissory notes executed in 1989 and 1990 in the total amount of $35,000. Three of the notes state that the defendant, Thomas E. Landers, Jr., and his ex-wife, Ellen Burns, who is the plaintiff's granddaughter, promise to repay the loan amount "upon the sale of 253 East Center Street [sic] upon demand." The fourth note states only "upon demand."

The case was tried to the court on November 7, 2000. The plaintiff failed to produce the original notes or provide an adequate explanation for their absence. The court nonetheless admitted copies of the notes.

It is not clear whether, in the three notes, "upon the sale of 253 East Center Street" and "upon demand" are separate conditions precedent or whether they both have to occur for the debtors to become liable. It is clear, however, that plaintiffs counsel failed to prove that either condition had taken place. There was no evidence that 253 East Center Street was ever sold and plaintiffs counsel conceded that it was not. There was also no evidence of a demand. The plaintiff who is ninety years old, testified that she could not remember whether she had made demand of the defendant. Plaintiffs counsel failed to introduce a demand letter attached to the complaint,¹ failed to elicit any testimony from the defendant on this issue, and failed to request any admissions on this or any other issue during pretrial discovery.

Since there is no evidence that either condition precedent to the defendant's liability has ever occurred, the plaintiff cannot prevail as a matter of law.² While the plaintiff impressed the court as a kindly CT Page 14104 and generous ninety year old woman who only asked for what she was due, this court simply cannot decide the case based on this sort of equity. Nor can this court supply evidence that the plaintiff did not introduce.

Judgment shall enter for the defendant. It is so ordered.

Carl J. Schuman Judge, Superior Court