author: Santaniello, J.

text:
    State of Connecticut v. Winston Echols
    (12716)
    Peters, C. J., Shea, Dannehy, Santaniello and Corrigan, Js.
    Argued January 6
    decision released May 5, 1987

      Kenneth Rosenthal, assistant public defender, with whom, on the brief, were Donald Dakers and Joette Katz, public defenders, and Joseph G. Bruckmann, assistant public defender, for the appellant (defendant).

      Judith Rossi, deputy assistant state’s attorney, with whom, on the brief, were Guy W. Wolf III and James G. Clark, assistant state’s attorneys, for the appellee (state).
   Santaniello, J.

The defendant, Winston Echols, was found guilty by a jury of kidnapping in the first degree in violation of General Statutes § 53a-92 (a) (2) (A) and of sexual assault in the first degree in violation of General Statutes § 53a-70 (a). He received a total effective sentence of twenty years. On appeal, he claims that the trial court erred in: (1) excluding evidence of a third party lookalike who had committed a similar crime in the vicinity of the present crime; (2) precluding cross-examination on a contemporaneous misidentification of the defendant; (3) refusing to strike the victim’s as well as a police officer’s testimony despite the destruction of the victim’s taped statements; (4) failing to grant the defendant a conclusive presumption with respect to physical evidence consumed in tests performed by the state, precluding the defendant from calling a witness to testify to the circumstances surrounding the transfer of the physical evidence and failing to preclude the state from relying on the second set of test results; (5) failing to suppress the out-of-court identification of the defendant or, in the alternative, failing to give an instruction on drawing an adverse inference with respect to that identification; and (6) denying his motions for acquittal and for a new trial premised on claimed prosecutorial misconduct. We find error on the defendant’s first claim and remand the case for a new trial. We therefore need not consider the defendant’s remaining claims of error.

The facts relevant to the disposition of this appeal are as follows: On August 13, 1984, B, a female college student, was walking home from work at approximately 9:30 p.m. As she walked by the Prince Street School, an abandoned elementary school near the corner of Church Street South and Prince Street in New Haven, she was grabbed from behind, threatened with a knife placed to her throat and dragged over a grassy area to several bushes near the school, where she was sexually assaulted. The area was fairly well lit, and B was able to get a good look at her assailant, whom she described as a dark-complexioned black male, between the age of twenty-three and thirty years old, approximately five feet seven to five feet nine inches tall with a short “afro” haircut, large lips and a “Neanderthalish,” protruding brow bone.

Four days after the assault, B went to the New Haven police department for the purpose of viewing photographs in an attempt to identify her assailant. While at the station, she was asked by Detective Anthony DiLullo to examine two ring bound volumes, or “trays,” of photographs. Each tray, organized according to a type of crime, contained approximately 200 photographs of black males, with each page containing a maximum of four photographs. The first tray, No. 29, contained photographs of persons charged with burglary, while the second tray, No. 116, was a “general crime” tray. B selected a photograph of the defendant from the first tray, but was unable to identify the defendant positively as her assailant because she felt the skin tone of the person in the photograph was too light. She did, however, positively identify the defendant as her assailant from a more recent photograph chosen from the second tray. Based on this identification, the defendant was arrested.

Approximately six months prior to this incident, on February 9,1984, another woman, H, had been sexually assaulted in her apartment located in the general vicinity of where the August 13 assault had occurred. At that time, H described her assailant as a dark-complexioned black male, about five feet eight inches tall with a thin build, short hair and very thick lips. She subsequently remembered that her assailant had a “large forehead bone” which made his eyes appear to be set forward.

After B positively identified the defendant from his photograph, DiLullo contacted H, suspecting that the defendant had been the assailant in the February assault. DiLullo requested that H accompany him to the police department to view photographs. There, H was shown tray No. 116, the second photo tray shown to B, and from that tray, H positively identified the defendant, stating that there was no doubt in her mind that he was her assailant. The defendant was subsequently charged with the February assault. The defendant, however, could not have committed this crime because he was incarcerated in the Hartford Correctional Center on February 9, 1984. Accordingly, the charges stemming from the February incident were nolled.

At trial, the defendant attempted to introduce evidence of H’s misidentification of the defendant, first during the cross-examination of DiLullo and then later during his case-in-chief. The trial court, however, refused to allow the defendant to introduce the misidentification into evidence on either occasion.

For the disposition of this appeal, we need only discuss the first claim of error proffered by the defendant; namely, that the trial court erred in precluding evidence of a third party lookalike who had committed a similar crime.

At trial, defense counsel attempted to introduce evidence of H’s identification during cross-examination of Detective DiLullo in an attempt to discredit the photo identification procedure concerning the August assault. Counsel claimed that because H had identified the defendant as her assailant in the February incident when, in fact, the defendant could not have committed the assault due to his incarceration at that time, the identification procedure was suspect. The state objected, and the trial court sustained the objection, ruling that any subsequent misidentification was completely irrelevant to this case.

During this discussion, defense counsel indicated that he wished to introduce this evidence as part of his casein-chief in order to prove that another individual fitting the description of the defendant might have committed the assault. The defendant’s attorney argued that because the descriptions of the February and August assailants were so similar that DiLullo suspected the same person had committed both crimes, and because H had mistakenly identified the defendant from the same photograph that B used to identify the defendant, there could have been a third party lookalike who had committed both crimes. Again, the trial court ruled the evidence inadmissible, stating that it was irrelevant.

The defendant claims that the trial court erred in refusing to allow the defendant to introduce evidence of H’s misidentification in his case-in-chief. We agree.

A defendant’s right to present witnesses and offer evidence is a fundamental element of due process of law. Washington v. Texas, 388 U.S. 14, 19, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967); see Chambers v. Mississippi, 410 U.S. 284, 294, 302, 93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973). Both this state and other jurisdictions have recognized that a defendant may introduce evidence which indicates that a third party, and not the defendant, committed the crime with which the defendant is charged. See, e.g., State v. Burge, 195 Conn. 232, 252, 487 A.2d 532 (1985); Siemon v. Stoughton, 184 Conn. 547, 555-56, 440 A.2d 210 (1981); State v. Giguere, 184 Conn. 400, 405, 439 A.2d 1040 (1981); State v. Gold, 180 Conn. 619, 646, 431 A.2d 501, cert. denied, 449 U.S. 920, 101 S. Ct. 320, 66 L. Ed. 2d 148 (1980); State v. Marshall, 166 Conn. 593, 601, 353 A.2d 756 (1974); see also United States v. Armstrong, 621 F.2d 951, 953 (9th Cir. 1980); Pettijohn v. Hall, 599 F.2d 476, 480 (1st Cir.), cert. denied, 444 U.S. 946, 100 S. Ct. 308, 62 L. Ed. 2d 315 (1979); United States v. Robinson, 544 F.2d 110, 113 (2d Cir. 1976), cert. denied, 434 U.S. 1050, 98 S. Ct. 901, 54 L. Ed. 2d 803 (1978); Holt v. United States, 342 F.2d 163, 165-66 (5th Cir. 1965); People v. Flowers, 644 P.2d 916, 918 (Colo.), appeal dismissed, 459 U.S. 803, 103 S. Ct. 25, 74 L. Ed. 2d 41 (1982); Kucki v. State, 483 N.E.2d 788, 791 (Ind. App. 1985); Commonwealth v. Jewett, 392 Mass. 558, 562, 467 N.E.2d 155 (1984).The defendant, however, must show some evidence which directly connects a third party to the crime with which the defendant is charged; Siemon v. Stoughton, supra; State v. Giguere, supra. It is not enough to show that another had the motive to commit the crime; State v. Marshall, supra; State v. Perelli, 125 Conn. 321, 328, 5 A.2d 705 (1939); nor is it enough to raise a bare suspicion that some other person may have committed the crime of which the defendant is accused. Brown v. State, 275 Ind. 227, 231, 416 N.E.2d 828 (1981).

The presentation and admissibility of such evidence is governed by the rules of relevancy. See State v. Burge, supra; State v. Giguere, supra, 405-406; State v. Gold, supra, 645-46; State v. Marshall, supra, 601-602; see also Commonwealth v. Jewett, supra; cf. Chambers v. Mississippi, supra, 302. We have often stated that “[e]vidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. . . . ‘One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. . . . Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue. Evidence is admitted, not because it is shown to be competent, but because it is not shown to be incompetent. No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience.’ Pope Foundation, Inc. v. New York, N.H. & H. R. Co., 106 Conn. 423, 435, 138 A. 444 [1927].” State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 (1967); see also State v. Boucino, 199 Conn. 207, 228, 506 A.2d 125 (1986); State v. McClendon, 199 Conn. 5, 8-9, 505 A.2d 685 (1986); State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985); State v. Gold, supra. Although the trial court has wide discretion in its rulings on the relevancy of evidence; State v. McClendon, supra, 8; State v. DeForge, 194 Conn. 392, 396, 480 A.2d 547 (1984); its rulings will be reversed if the court has abused its discretion or where injustice appears to have been done. State v. Smith, 198 Conn. 147, 157, 502 A.2d 874 (1985); State v. Johnson, 190 Conn. 541, 548-49, 461 A.2d 981 (1983); see State v. Gold, supra, 646.

In the present case, justice requires that the proffered evidence of H’s misidentification be admitted. In a case such as this, where the identity of the assailant is essentially the sole issue at trial, evidence that a third party lookalike may have committed the crime with which the defendant is charged is highly relevant. Here, the assailants in both the February and August assaults were similarly described, both assaults occurred in the same neighborhood, and, most importantly, each victim positively identified her assailant from the same photograph of the defendant, although the defendant could not have committed the February crime. H’s mistaken identification is probative on the issue of whether there existed a third party lookalike who may have committed the August crime. Taken in the totality of the circumstances, such evidence raises more than a bare suspicion that another may have committed the August assault; it is evidence which would have aided the trier of fact in determining the issue of the August assailant’s identity. Thus, the trial court erred in refusing to allow the defendant to present this evidence in his case-in-chief.

There is error, the judgment is set aside and the case is remanded for a new trial.

In this opinion the other justices concurred.

       “[General Statutes] Sec. 53a-92. kidnapping in the first degree. “(a) A person is guilty of kidnapping in the first degree when he abducts another person and when ... (2) he restrains the person abducted with intent to (A) inflict physical injury upon him or violate or abuse him sexually.”

       “[General Statutes] Sec. 53a-70. sexual assault in the first degree: class b felony: one year not suspendable. (a) A person is guilty of sexual assault in the first degree when such person compels another person to engage in sexual intercourse by the use of force against such other person or a third person, or by the threat of use of force against such other person or against a third person which reasonably causes such person to fear physical injury to such person or a third person.”

       The defendant’s remaining claims of error need not be discussed at this time because a determination of error on any of these claims would result in a new trial, which already has been granted. We note that the defendant also claims the trial court erred in denying his motions for acquittal. The defendant’s motions, however, were not premised on the insufficiency of the evidence, but rather on claims of alleged prosecutorial misconduct. It appears that this claim, if meritorious, would warrant, at best, a reversal of the conviction and a new trial. Therefore, we need not address this claim.

       “Mr. Rosenthal: With respect to my line of cross-examination of this witness in a case involving identification as the key issue . . . [t]he identification procedure is essential. I have reason to believe the descriptions in terms of the affidavits that are a part of the court record already in each of the arrest warrants are very similar. Indeed, this officer concluded, based on the description in both cases, that they were the same individual. The search warrant that was requested by this officer was requested in both cases at the same time with the representation to the court that they had occurred in close proximity and, in effect, they were committed by the same individual, and yet we have—it’s really a classic case of how an identification procedure, through no fault perhaps of anybody, can go awry, and it’s the very same tray, the very same photograph, the very same month, the very same neighborhood, the very same description, the very same officer conducting the photo identification at the very same police station, and I think the Jury should be entitled to know, in deciding whether to convict my client based on the identification from tray 116 on August 17th, in part to convict him on that basis, they are entitled to know that on a subsequent day, I think it was August 23rd, something like that, a positive identification was made by another non-white complainant in a sexual assault case occurring in the same general vicinity as this assault occurred, in close proximity, to quote Detective DiLullo’s words in the affidavit, and that it subsequently turned out that my client was locked up tight in Hartford Correctional Center on the date that that identification, that incident occurred. I think they are entitled to know that the identification procedure on which the State is hinging its case broke down, was wrong, where they can be shown to be wrong, and I think they have to have that piece of information in order for them to make a decision in this case.”

       “The Court: Counselor, I don’t think you need to refer to anymore cases. As far as this Court is concerned, it appears to me that what you are attempting to do at this point means absolutely nothing to this particular identification. It is entirely irrelevant as far as I am concerned, and the objection on the part of the State is sustained.
      “Mr. Rosenthal: I take exception.
      “The Court: You certainly may take an exception. You are not going to go into the question of any subsequent identifications, wrongful or otherwise.”

       “Mr. Rosenthai: The other claim that we made ... is that evidence that another individual fitting the description the individual described in this case, this incident, which bears sufficient similarity to connect the two, the assailant in both cases as being the same person, is admissible in a Connecticut criminal trial. . . . [I]f Your Honor will bear with me just a moment, the similaritpes] in description, to the extent I am aware of them at this point, include a claim that was, in the affidavit at least, short hair, that the individual was five foot nine, that he had large lips, that both incidents occurred, again to quote the officer, in the officer’s own affidavit in the second case, in close proximity to each other, both individuals had a dark complexion. I think the description is five foot eight in the second statement. Based on the officer’s investigation of these two cases, he felt that the same individual was involved such that he came into the court on August 29th with an arrest warrant affidavit in the second case, and I think based on those similarities, the fact that the victim—these are both violent sexual assaults, the fact that the victim in both cases is non-white, it is true, one occurs inside, one occurs outside, but we have to keep in mind the one that occurred outside occurred in the heat of August, and the one inside occurred in the cold of winter. There is reason on the record that is already available to permit the defendant, I claim, to present this information to the Jury for their consideration. It may be that they will decide that that is not the ultimate determinant, but that’s a question, it seems to me, for a Jury and something that the defendant should have a right to present.
      * * *
      “[T]here are enough similarities to get to the threshold of a defendant in a serious criminal case, in any criminal case, would be entitled to bring that information before the Jury for their use in making the difficult decision.”

       “The Court: Counselor, the Court is going to sustain the objection to your attempt to introduce any evidence of that nature. As far as this Court is concerned, this case is going to be determined by this Jury based on the identification procedures that they have heard. Anything else that may have happened afterwards as far as I’m concerned is completely irrelevant to this particular case, so when and if that opportunity arises that you attempt to present that type of evidence and there is an objection, the Court will sustain the objection. You may have an exception at the appropriate time.”
      During the presentation of his defense, the defendant attempted to introduce the police records concerning the description of the February assailant in order to prove the existence of a third party lookalike. Again, the court refused to admit such evidence.

       The state claims that the defendant failed to make a proper offer of proof because he failed to call H, the victim of the February assault, to the stand. Defense counsel’s description of the misidentification evidence, however, was enough to call the trial court’s attention to its relevancy. In light of the trial court’s unequivocal adverse rulings; see footnotes 4, 6, supra; we conclude that the defendant was not required to call H to the stand. Cf. State v. Conroy, 194 Conn. 623, 629 n.8, 484 A.2d 448 (1984); Commonwealth v. Jewett, 392 Mass. 558, 562, 467 N.E.2d 155 (1984).


source: Caselaw Access Project

author: Peters, C. J.

license: Public Domain

text:
    Armac Industries, Ltd. v. Citytrust
    (13022)
    Peters, C. J., Healey, Shea, Santaniello and Callahan, Js.
    Argued March 11
    decision released May 5, 1987

      Gary P. Sklaver, for the appellant (plaintiff).

      Richard J. Buturla, for the appellee (defendant).
   Peters, C. J.

The decisive question in this case is whether an issuing bank rightfully dishonored a demand for payment of a letter of credit because of discrepancies between the demand and the terms of the letter of credit. The plaintiff, Armac Industries, Ltd., the designated beneficiary of an irrevocable letter of credit, brought an action against the defendant Citytrust to recover $49,766.41, the face amount of the credit issued by the defendant at the request of its customer, Pac Corporation. After a hearing, the trial court rendered judgment for the defendant and the plaintiff has appealed.

The facts are undisputed. The Pac Corporation (Pac) arranged for the defendant to issue a commercial letter of credit in conjunction with Pac’s purchase, on December 10, 1979, of an extrusion blow molding machine from the plaintiff. The plaintiff, a manufacturer of such machines, is a New York corporation which, at the time of the sale, had its principal place of business in West-bury, New York. Pac is a Connecticut corporation whose principal place of business is in Watertown. The defendant is a Connecticut bank. The purchase price for the machine was partially paid in cash, with the remainder to be paid through the letter of credit.

The defendant issued an irrevocable letter of credit in favor of the plaintiff for the sum of $49,766.41 on April 27, 1981. As subsequently amended on May 8, 1981, the credit required the beneficiary to present for payment, through a commercial bank, a draft and a signed performance statement, in accordance with detailed specifications contained in the credit. The credit indicated that drafts were to be dated no earlier than May 25, 1981, and no later than June 30, 1981.

On behalf of the plaintiff, the European American Bank and Trust Company (EAB) sent a collection letter to the defendant on or about May 19, 1981, which was received on May 22, 1981. The collection letter referred to the letter of credit by number, and contained as attachments an unsigned draft and a bill of lading. The defendant determined that it would not honor this request for payment, because it deemed the presentment not to conform to the terms of the letter of credit, and because, in the interim, it had been served with a garnishment and restraining order in an action brought by its customer, Pac, against the plaintiff. Accordingly, on June 2,1981, the defendant so advised EAB by telex, indicating in some detail the noncompliance of the draft with the terms of the letter of credit, and noting that the bill of lading did not satisfy the requirement for a signed performance statement. This telex was confirmed, two days later, when the defendant wrote EAB, returning to it the collection letter, together with the draft, bill of lading, letter of credit and amendment thereto. Although the letter of credit did not expire until June 30, 1981, the plaintiff made no further effort to tender a timely and proper demand for payment in conformity with its terms.

Several years later, in early 1985, the civil action between Pac and the plaintiff ended with a judgment for the plaintiff in the amount of $49,766.41. Upon the release of the garnishment issued in connection with that action, the plaintiff renewed its demand that the defendant honor the letter of credit. When the defendant refused to do so, the present action ensued.

The trial court concluded that the plaintiff could not prevail because its demand for payment did not conform with the express terms and conditions of the letter of credit as amended. The court determined that the unsigned draft and the absence of the required performance statement constituted significant discrepancies in the plaintiffs tender. In assessing the significance of these discrepancies, and in rejecting the plaintiffs argument of waiver, the court attached considerable importance to the defendant’s timely notification of the plaintiff, well in advance of the expiration date of the letter of credit, and to the plaintiff’s failure to take any further timely steps to present proper documentation to the defendant.

The plaintiff’s appeal from the judgment in favor of the defendant raises four issues. The plaintiff claims the trial court erred: (1) in failing expressly to define the standard of compliance that governs letters of credit; (2) in holding that the unsigned draft did not comply with the terms of the letter of credit; (3) in concluding that dishonor was justified because the tender lacked a performance statement; and (4) in failing to find waiver or estoppel with regard to the discrepancy in the size of the extruder as described in the letter of credit and the bill of lading. We find no error.

I

The law that governs letters of credit in this state is contained in article 5 of the Uniform Commercial Code, General Statutes §§ 42a-5-101 through 42a-5-117. A letter of credit, under the code, is an engagement by a bank or other person, made at the request of a customer, that the issuer will honor drafts or other demands for payment upon compliance by the beneficiary with the conditions specified in the credit. General Statutes § 42a-5-103 (1) (a); New York Life Ins. Co. v. Hartford National Bank & Trust Co., 173 Conn. 492, 498, 378 A.2d 562 (1977); B. Clark, The Law of Bank Deposits, Collections and Credit Cards (Rev. Ed. 1981) § 8.2; J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) c. 18.

Letter of credit transactions have a tripartite nature because they involve three separate commitments. The first is the underlying contract between the customer and the beneficiary, here the sales contract between Pac and the plaintiff, Armac. The second is the contract between the customer and the issuer, here the contract between Pac and the defendant, Citytrust, concerning the issuance of the credit in exchange for the customer’s promise to reimburse the issuer for payments made in conformance with the terms of the credit. The third is the letter of credit itself, obligating the issuer to honor proper drafts or other demands for payment by the beneficiary, if accompanied by the documentation required by the credit.

In the common law of letters of credit; O’Meara Co. v. National Park Bank, 239 N.Y. 386, 146 N.E. 636 (1925); and under the code; General Statutes §§ 42a-5-114 and 42a-5-109; the single most important legal principle is the independence of these three commitments, and especially the independence of the letter of credit from the underlying commercial agreement between the customer and the beneficiary. As a consequence, § 42a-5-114 (1) provides that the issuer must pay upon the tender of facially conforming documentation, “regardless of whether the goods or documents conform to the underlying . . . contract between the customer and the beneficiary.” Similarly, § 42a-5-109 (2) defines the issuer’s duty to its customer as an obligaion in good faith to examine documents with care “so as to ascertain that on their face they appear to comply with the terms of the credit . . . As a result, a letter of credit customer may have to reimburse a bank for its payments even though the customer might have a defense in a direct action on the underlying contract by the beneficiary of the letter of credit. New York Life Ins. Co. v. Hartford National Bank & Trust Co., supra, 498-99; see also East Girard Savings Assn. v. Citizens National Bank & Trust, Co., 593 F.2d 598, 601 (5th Cir. 1979); Colorado National Bank of Denver v. Board of County Commissioners, 634 P.2d 32, 36-37 (Colo. 1981); Westwind Exploration, Inc. v.Homestate Savings Assn., 696 S.W.2d 378, 381 (Tex. 1985).

The parties to the present litigation do not dispute the general principle that letters of credit are documentary forms of transaction, in which the issuer’s duty to pay is measured by the compliance of the beneficiary’s tender with the terms of the credit without regard to the beneficiary’s performance or nonperformance of the underlying contract. They disagree about a question that is not expressly addressed either by the governing statutes or by the Uniform Customs and Practice for Documentary Credits which the letter of credit in this case incorporated by reference. That question is whether the conformity of a tender under a letter of credit is to be measured by a standard of strict compliance or of substantial performance. The trial court’s failure to determine the proper standard is the first issue raised by the plaintiff’s appeal. We agree that it is important to resolve this question before we undertake to analyze the specific discrepancies in the plaintiff’s tender which the trial court held to be sufficient to justify the defendant’s dishonor of the credit.

In order to determine the standard by which to measure the compliance of a beneficiary’s tender, we must look to the purpose that a letter of credit is intended to serve. “[O]ne of the expected advantages and essential purposes of a letter of credit is that the beneficiary will be able to rely on assured, prompt payment from a solvent party; necessarily, a part of this expectation of ready payment is that there will be a minimum of litigation and judicial interference, and this is one of the reasons for the value of the letter of credit device in financial transactions.” New York Life Ins. Co. v. Hartford National Bank & Trust Co., supra, 499. In our view, that purpose can best be served by requiring strict compliance with the terms of a letter of credit. The issuer of a letter of credit has only a short period of time to determine the conformity of a tender. In case of doubt, the issuer may consult its customer for advice about whether a tender is acceptable. When the beneficiary presses for payment while the customer urges dishonor, the issuer can only protect its right of reimbursement if it is entitled to insist on strict compliance by the beneficiary. For these reasons, in the language of an oft-cited English case, in letters of credit, “[t]here is no room for documents which are almost the same, or which will do just as well.” Equitable Trust Co. of New York v. Dawson Partners, Ltd., 27 Lloyd’s List Law Rpts. 49, 52 (1926). We therefore subscribe to the view of the majority of the cases and the commentators that hold that a beneficiary may not complain of wrongful dishonor of a letter of credit without first establishing strict compliance of his tender with the terms of the credit. See, e.g., Beyene v. Irving Trust Co., 762 F.2d 4, 6 (2d Cir. 1985); Board of Trade of San Francisco v. Swiss Credit Bank, 728 F.2d 1241, 1243 (9th Cir. 1984); Philadelphia Gear Corporation v. Central Bank, 717 F.2d 230, 235-36 (5th Cir. 1983); Ins. Co. of North America v. Heritage Bank, 595 F.2d 171, 175 (3d Cir. 1979); Bossier Bank & Trust Co. v. Union Planters National Bank, 550 F.2d 1077, 1081 (6th Cir. 1977); Courtaulds North America, Inc. v. North Carolina National Bank, 528 F.2d 802, 805-806 (4th Cir. 1975); United Commodities-Greece v. Fidelity International Bank, 64 N.Y.2d 449, 455, 478 N.E.2d 172, 489 N.Y.S.2d 31 (1985); B. Clark, The Law of Bank Deposits, Collections and Credit Cards (Rev. Ed. 1981) § 8.5 [4]; H. Harfield, Letters of Credit (1979) p. 37; contra Flagship Cruises, Ltd. v. New England Merchants National Bank, 569 F.2d 699, 705 (1st Cir. 1978); First National Bank v. Wynne, 149 Ga. App. 811, 815-16, 256 S.E.2d 383 (1979); First Arlington National Bank v. Stathis, 90 Ill. App. 3d 802, 814-16, 413 N.E.2d 1288 (1980); CNA Mortgage Investors, Ltd. v. Hamilton National Bank, 540 S.W.2d 238, 241 (Tenn. App. 1975); 7 R. Anderson, Uniform Commercial Code (3d Ed. 1985) § 5-109:9.

II

Having decided that the standard by which to measure the plaintiffs tender is strict compliance with the terms of the letter of credit issued by the defendant, we turn now to the plaintiff’s remaining claims of error. The plaintiff urges us to hold that the trial court erred in concluding that the draft and the bill of lading presented to the defendant by E AB on the plaintiff’s behalf failed to conform to the terms of the credit. He also maintains that the defendant waived, or should be estopped from claiming, any discrepancy between the size of the extruder as described in the letter of credit and in the bill of lading. These claims of error require a precise comparison between the terms of the credit and the documentation presented by the EAB collection letter. We agree with the trial court that the plaintiff has failed to establish wrongful dishonor on the part of the defendant.

The letter of credit, as amended, specifically conditioned the defendant’s undertaking in the following terms. With respect to the demand for payment, the credit authorized the plaintiff to draw drafts at five days sight, the drafts to be dated not later than June 30, 1981, but not before May 25,1981. The amount of any draft drawn under the credit was required to be endorsed on the reverse of the original credit and all drafts were required to be marked as drawn under Citytrust Letter of Credit Number S-3279 dated April 27, 1981. With respect to the presentation of the demand for payment, the credit further required that presentation be made through a commercial bank and accompanied by a designated document. This document was described as a “signed statement stating that the ‘Armac Extrusion Blow Molding Machine, with inch extruder, presently in Armac Industries, Ltd. plant premises, has been picked up at the Armac Industries, Ltd. plant premises in Westbury, New York.’ ”

The collection letter sent by EAB to the defendant on May 19,1981, on behalf of the plaintiff, referred on its face to “L/C on Pac Corporation drawn on City Trust LC -S 3279 dated 4/27/81 with documents attached” and sought payment in the principal amount of $49,766.41 due at five days sight. Attached to the collection letter were: (1) the original amended letter of credit, unendorsed; (2) an unsigned draft dated May 26, 1981, in the face amount of the credit; and (3) a short form straight bill of lading. The unsigned draft contained a blank for Citytrust’s authorized signatory as drawer, was payable to the plaintiff, and on its reverse side, was endorsed by the plaintiff and by EAB. The bill of lading, signed by the plaintiff as shipper and by an agent for the carrier, described the following packages:

“1 Blow Mold Machine Model C 1. 75 ser. #271080 as per following:
1 1¾ Extruder complete with Drive-Hopper & Hydraulic system.
1 Blow Mold Press complete with blowing station — 4 blow pins — stripper & 4 cavity mold for 8 oz. bottle.”

The defendant received EAB’s collection letter on May 22, 1981. Nine days later, it was served with a complaint, garnishment and restraining order in an action brought by its customer, Pac, against the plaintiff. On June 2, 1981, the defendant notified EAB by telex that it would not honor the request for payment because of the outstanding garnishment and restraining order and because of discrepancies in the presentment. The defendant identified these discrepancies as follows:

“1. Draft not signed by drawer: does not indicate tenor: L/C No. and issuance date of L/C
2. B/L presented in lieu of performance statement.”

Two days later, the defendant wrote EAB, returning to it the collection letter, together with the draft, bill of lading, letter of credit and amendment thereto. The letter of credit expired by its terms on June 30, 1981, without any further demand for payment by or on behalf of the plaintiff.

On this record, as the trial court concluded, the plaintiff cannot be said to have proven strict compliance with the terms of the letter of credit. The defendant was fully justified in finding discrepant both the draft and the substitute for the signed performance statement tendered by the plaintiff.

With respect to the draft, we need only address the fact that it was not signed by the drawer. The provisions of § 42a-5-103 (3) expressly incorporate the definition of “draft” contained in § 42a-3-104. Under the latter section, a draft must be signed by a drawer to be a valid instrument. In addition, § 42a-3-115 (1) provides that an instrument which is incomplete when it is signed “cannot be enforced until completed.” On its face, the draft presented by the plaintiff was, at best, an incomplete instrument that was unenforceable.

The plaintiffs arguments to the contrary are unpersuasive. A draft signed by the plaintiff as drawer was required in order to assure the defendant that presentment was being made on behalf of the beneficiary designated in the credit. The stipulation in the letter of credit that the amount of any draft drawn thereunder be endorsed on the original credit is a normal precaution against the risk of overpayment, and did not, as the plaintiff contends, excuse the tender of the drawer’s draft. Finally, the plaintiff’s signature on the rear of the unsigned draft did not cure the absence of a drawer’s signature; a signature in an ambiguous capacity is deemed to be an endorsement, and an endorsement is merely a conditional engagement to pay an instrument according to its tenor at the time of its endorsement. General Statutes §§ 42a-3-402, 42a-3-414 (1). If, according to its tenor, the draft was then incomplete and unenforceable, such a defect is not cured by an endorsement.

The noncompliance of the unsigned draft with the terms of the credit was alone sufficient to justify the defendant’s dishonor of the demand for payment. For the sake of completeness we note, however, our agreement with the conclusion of the trial court that a straight bill of lading is not “a signed statement stating that the ‘Armac Extrusion Blow Molding Machine, with inch extruder, presently in Armac Industries, Ltd. plant premises, has been picked up at the Armac Industries, Ltd. plant premises in Westbury, New York.’ ” The plaintiff virtually concedes this point, relying on cases adopting the substantial performance standard that we have rejected.

Finally, we find nothing in this record to support the plaintiff’s argument of waiver or estoppel with regard to the discrepancy in the description of the size of the extruder, which was to be inches under the letter of credit but was specified as 1¾ inches in the bill of lading. That argument is unpersuasive for two reasons: (1) since the plaintiff’s tender was, as we have concluded, defective in two other respects, it is irrelevant whether it was also defective in this regard, and any possible waiver is immaterial; and (2) since waiver and estoppel depend upon affirmative findings of fact by the trial court; Loda v. H.K. Sargeant & Associates, 188 Conn. 69, 76, 448 A.2d 812 (1982); Multiplastics, Inc. v. Arch Industries, Inc., 166 Conn. 280, 286, 348 A.2d 618 (1974); Girden v. Alubowicz, 136 Conn. 511, 513, 72 A.2d 491 (1950); the absence of such factual findings, unless clearly erroneous, is dispositive. The trial court was entitled to discredit the testimony of the plaintiff’s president about an alleged conversation about the size of the extruder with an unidentified person at the defendant’s place of business. We note, furthermore, that the cases of waiver on which the plaintiff relies are all factually distinguishable from the case before us. In those cases, the issuer affirmatively misrepresented that noncomplying documents would be acceptable and retracted that misrepresentation at a time when the beneficiary no longer had an opportunity to cure the defect of which it had been belatedly advised. Barclays Bank D. C. O. v. Mercantile National Bank, 481 F.2d 1224, 1236-37 (5th Cir. 1973), cert. dismissed, 414 U.S. 1139, 94 S. Ct. 888, 39 L. Ed. 2d 96 (1974); U.S. Industries, Inc. v. Second New Haven Bank, 462 F. Sup. 662, 664 (D. Conn. 1978). That is a far cry from the facts here, where the plaintiff had ample time to cure the discrepancies of which it was accurately put on notice.

There is no error.

In this opinion the other justices concurred.

       The extent to which the issuer is obligated to honor a demand when the accompanying documents are forged or fraudulent or there is in fact “fraud in the transaction” is a more difficult question on which the commentators are in some disagreement. J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) p. 734; H. Harfield, Letters of Credit (1979) pp. 85-90.

       The Uniform Customs and Practice for Documentary Credits is a publication of the International Chamber of Commerce (ICC) setting forth rules governing documentary credits to facilitate international banking transactions. The letter of credit incorporated the 1974 revision of this ICC publication, which provides in relevant part:
      “B. LIABILITIES AND RESPONSIBILITIES
      “ARTICLE 7
      “Banks must examine all documents with reasonable care to ascertain that they appear on their face to be in accordance with the terms and conditions of the credit. Documents which appear on their face to be inconsistent with one another will be considered as not appearing on their face to be in accordance with the terms and conditions of the credit.
      “article 8
      “a. In documentary credit operations all parties concerned deal in documents and not in goods.
      ‘ b. Payment, acceptance or negotiation against documents which appear on their face to be in accordance with the terms and conditions of a credit by a bank authorized to do so, binds the party giving the authorization to take up the documents and reimburse the bank which has effected the payment, acceptance or negotiation.
      “e. If, upon receipt of the documents, the issuing bank considers that they appear on their face not to be in accordance with the terms and conditions of the credit, that bank must determine, on the basis of the documents alone, whether to claim that payment, acceptance or negotiation was not effected in accordance with the terms and conditions of the credit.
      “d. The issuing bank shall have a reasonable time to examine the documents and to determine as above whether to make such a claim.”

       General Statutes § 42a-3-104 provides in relevant part: “form of NEGOTIABLE INSTRUMENTS; ‘DRAFT’; ‘CHECK’; ‘CERTIFICATE OF DEPOSIT’; ‘note’. (1) Any writing to be a negotiable instrument within this article must (a) be signed by the maker or drawer; and (b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this article; and (c) be payable on demand or at a definite time; and (d) be payable to order or to bearer.
      “(2) A writing which complies with the requirements of this section is (a) a ‘draft’ (‘bill of exchange’) if it is an order; (b) a ‘check’ if it is a draft drawn on a bank and payable on demand; (c) a ‘certificate of deposit’ if it is an acknowledgement by a bank of receipt of money with an engagement to repay it; (d) a ‘note’ if it is a promise other than a certificate of deposit.”

       In light of this fatal discrepancy in the draft, we need not decide whether the failure to indicate, on the face of the draft, the tenor, letter of credit number and issuance date of the credit, would themselves have warranted dishonor. These technical discrepancies arguably might have been cured by the terms of the collection letter that contained this information.


text:
    Benjamin C. Preisner et al. v. Aetna Casualty and Surety Company et al.
    (12919)
    Peters, C. J., Santaniello, Higgins, F. Hennessy and Ment, Js.
    Argued March 4
    decision released May 5, 1987

      Lewis K. Wise, for the appellants (plaintiffs).

      Lee L. Bennett, with whom, on the brief, were Thomas J. Groark, Jr., and John A. Danaher III, for the appellees (defendants).
   Peters, C. J.

This case concerns the right of indemnification of an accommodation comaker of a promissory note who settles with the holder of the note during the pendency of an appeal by the underlying obligor from a judgment of liability. The plaintiffs, Benjamin C. Preisner and his assignee, Robert L. Hirtle, Jr., brought an action for damages for breach of contract against the defendant Aetna Casualty and Surety Company (Aetna) and for conversion against the defendants Aetna and Suzio Insurance Center (Suzio). The trial court granted the defendants’ motion for partial summary judgment and the plaintiffs have appealed. We find error.

According to the stipulated facts, the plaintiff Benjamin C. Preisner decided, on November 1,1974, to purchase an insurance agency from Paul King, Jr. As part of this purchase, Preisner issued to King, as payee, a $68,000 noninterest bearing promissory note, on which he and Aetna were comakers. In order to finance this undertaking, Preisner and Aetna, on November 11, 1974, entered into an agency loan guarantee agreement. The loan guarantee provided that Aetna would agree to act as comaker of the note to King in return for Preisner’s promise to pay the note and to indemnify Aetna “if it becomes obligated to make any payments or sustains any loss” as a result of Preisner’s failure to pay the note promptly upon its due date. As security for the loan guarantee, Preisner gave Aetna a security interest in his insurance business. Aetna was given authority to sell this collateral in the event of Preisner’s default on the loan guarantee.

King negotiated the Preisner note to Funding Consultants, Inc. (Funding), on January 18, 1975. When Funding thereafter demanded payment of the note from Preisner, he refused, alleging that King had fraudulently misrepresented the financial condition of the insurance agency at the time of its sale to Preisner. Funding then brought suit on the note (the Funding action), claiming a right to recover on the note as a holder in due course that was unaffected by any personal defense such as fraudulent inducement. The Funding action was originally brought only against Aetna, which impleaded Preisner as a third party defendant, but thereafter Preisner was added as a defendant in the principal action as well. Both Aetna and Preisner raised defenses of failure of consideration arising out of King’s alleged misrepresentations, and challenged Funding’s status as a holder in due course. At the trial of the Funding action, the parties stipulated that any judgment against Aetna would also be a judgment against Preisner. After a jury verdict in favor of Funding, and in favor of Aetna against Preisner in the same amount, both Aetna and Preisner, on June 2, 1980, appealed to this court.

While these appeals were pending, Aetna, on May 11, 1982, settled the principal judgment by paying Funding $85,000. Preisner had notice of the settlement negotiations but did not participate therein. Preisner agreed that the settlement was reasonable in amount but maintained that Aetna should not have settled during the pendency of the appeal, and that he was therefore not obligated to indemnify Aetna for the settlement. When Preisner refused indemnification, Aetna, on July 1, 1982, took possession of the insurance agency, the collateral for the security interest, and on the same day sold the agency to the defendant Suzio.

As a result of the settlement, Aetna withdrew its appeal before the case was heard for oral argument on May 11,1982. Preisner, however, continued the prosecution of the appeal in the Funding action. In Funding Consultants, Inc. v. Aetna Casualty & Surety Co., 187 Conn. 637, 447 A.2d 1163 (1982), this court, on July 27,1982, ordered a new trial because of the erroneous exclusion of evidence relevant to Funding’s good faith and therefore relevant to its status as a holder in due course.

Upon remand of the Funding action, further proceedings between Funding and Preisner resulted in a directed verdict rendered in favor of Preisner on February 17,1983. No appeal was taken from that judgment. Aetna withdrew its third party action against Preisner on July 27, 1983.

Preisner and his assignee Hirtle commenced the present lawsuit by filing a complaint on October 27, 1982. Its first count alleged that Aetna’s seizure and sale of Preisner’s insurance business on July 1, 1982, was a breach of the terms and conditions of the agency loan guarantee agreement. The second count alleged that Aetna’s seizure and sale of Preisner’s assets constituted an illegal conversion. The third count charged the purchaser Suzio with illegal conversion. The fourth count charged Suzio with misfeasance in the conduct of the insurance business and resultant impairment of Preisner’s rights to renewal commissions. On the first three of these counts, the defendants moved for summary judgment, alleging that Aetna was entitled to indemnification, and to enforce its security interest in default thereof, because, in the earlier suit, the trial court had rendered a final judgment in favor of Funding against Aetna and in favor of Aetna in its third party complaint against Preisner.

The trial court, in the present action, ruled that Aetna was entitled to summary judgment on the three counts in which it was a named defendant. The court found that the indemnity provisions in the agency loan guarantee agreement entitled Aetna to indemnification against actual loss or damage. According to the court, Aetna’s right to indemnification arose when Preisner defaulted on the note and Aetna, as comaker, became legally liable to Funding, the holder of the note. This liability, the court determined, became fixed on March 20, 1980, when judgment was rendered against Preisner and Aetna in the underlying Funding action. Despite the pending appeal in that action, of which Aetna concededly had notice, the court further determined that the judgment of the trial court in the Funding action was final. Moreover, when Aetna withdrew its Funding appeal, that judgment, as against Aetna, became final and binding, according to the trial court in the present case. Because Aetna was legally liable to Funding when the settlement was reached, and because the terms of that settlement were reasonable, the trial court concluded that Aetna was entitled to indemnification from Preisner. On the relevant counts of the plaintiffs’ complaint, the court therefore determined that Aetna, and derivatively Suzio, were entitled to summary judgment.

After the partial summary judgment in favor of Aetna and Suzio, the plaintiffs sought permission to amend their complaint to add a fifth count alleging failure to give proper notice of the disposition of the secured collateral. The trial on the fourth count resulted in a stipulated judgment conveying to Preisner all proceeds from the sale of the agency to Suzio beyond Aetna’s $85,000 security interest in the insurance agency. Thereafter the trial court denied the plaintiffs’ motion to amend.

In their appeal, the plaintiffs claim that the trial court erred: (1) in concluding that Aetna’s seizure of Preisner’s business was justified by a prior third party judgment in its favor; (2) in granting the defendants’ motion for partial summary judgment without affirm - ative proof of Preisner’s liability on his promissory note to King; and (3) in denying the motion to amend the complaint to include a fifth count relating to the manner of the disposition of the secured collateral. We find error on the first two claims but not on the third.

I

The issues raised in the first two claims can conveniently be addressed jointly, because they both turn on the effect of a final judgment, in the trial court, on an accommodation party’s right to indemnification after a settlement with a creditor during the pendency of an appeal. If the trial court judgment in the Funding action did not, as a matter of law, trigger an obligation that Aetna could settle so as to invoke its right of indemnification, then Aetna would have to establish, as a matter of fact, that Preisner had improperly failed “to promptly pay the aforesaid notes” whose payment Aetna had guaranteed. Absent such a factual showing, there would have been no default on the security agreement, and Aetna would then be liable for conversion for wrongful disposition of the secured collateral to Suzio.

We note, at the outset, what is not at issue in this case. Preisner does not dispute that Aetna had the authority voluntarily to settle with Funding, and concedes that he would have been liable to Aetna, because of this good faith settlement, had the judgment in favor of Funding been affirmed by this court. Aetna does not dispute that Preisner actively contested his liability to Funding and to Aetna, and that the trial court judgment in favor of Funding was stayed during the pending appeal to this court.

The crux of the disagreement between the parties is whether Aetna was entitled to indemnification because of its good faith decision to cut its losses by settling with Funding on the basis of the trial court judgment in the Funding action. That judgment not only held Aetna liable to Funding but also held Preisner liable to Aetna on its third party claim. According to Aetna, “[tjhere is no justification for compelling a codefendant indemnitee, that has suffered an adverse judgment and obtained a valid judgment of indemnification against its indemnitor, to engage in an appeal of a final judgment and to wait for the results of endless appeals and retrials.” Preisner contends, however, that neither Aetna’s liability to Funding, nor his liability to Funding or to Aetna, was finally established during the pendency of the Funding action appeal to this court. We agree with Preisner.

As this court has previously noted, the effect of a pending appeal upon an otherwise final judgment has aptly been characterized as “[ojne of the most troublesome problems in applying the rule of finality [of judgments],” because this is an area in which “[t]here are no technically precise and universally recognized rules . . . .” F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.4, p. 592; see siso Enfield Federal Savings & Loan Assn. v. Bissell, 184 Conn. 569, 573, 440 A.2d 220 (1981); 2 A. Freeman, Judgments (5th Ed. 1925) § 727. In the absence of universally applicable rules, we have recognized that the relationship between a pending appeal and a judgment depends upon the nature of the issue that is to be addressed. Accordingly, a trial court judgment has been held to be final, despite a pending appeal, insofar as the issue was the triggering of the statute of limitations; Varley v. Varley, 181 Conn. 58, 60-61, 434 A.2d 312 (1980); the continuing validity of interlocutory alimony orders; Saunders v. Saunders, 140 Conn. 140, 146, 98 A.2d 815 (1953); or the applicability of the rules of res judicata. Salem Park, Inc. v. Salem, 149 Conn. 141, 144, 176 A.2d 571 (1961). In Bissell, we held that such a judgment was not final for the purpose of determining the law governing mortgage foreclosures when that law was amended during the pendency of an appeal. Enfield Federal Savings & Loan Assn. v. Bissell, supra, 573-74.

The finality of a trial court judgment is not directly affected by the fact that an appeal automatically stays the enforcement of a judgment. See Practice Book § 4046 (formerly § 3065). The stay does not vacate the judgment obtained by the successful litigant. It merely denies that party “the immediate fruits of his or her victory”; Connolly v. Connolly, 191 Conn. 468, 481, 464 A.2d 837 (1983); in order to protect the full and unhampered exercise of the right of appellate review. Hartford National Bank & Trust Co. v. Tucker, 181 Conn. 296, 298, 435 A.2d 350, cert. denied, 449 U.S. 956, 101 S. Ct. 363, 66 L. Ed. 2d 221 (1980). Correlatively, an order of execution, in the absence of a stay, does not moot the justiciability of a pending appeal. “If a judgment has been satisfied before it is reversed . . . ‘the law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment, to make restitution to the other party for what he has lost; and the mode of proceeding to effect this object must be regulated according to circumstances.’ Bank of United States v. Bank of Washington, 31 U.S. (6 Pet.) 8, 17, 8 L. Ed. 299 [1832].” Reilly v. State, 119 Conn. 217, 222-23, 175 A. 582 (1934); Bock v. Meriden Trust & Safe Deposit Co., 135 Conn. 94, 95 n.1, 60 A.2d 918 (1948).

The finality of a judgment may, however, depend upon the outcome of the pending appeal. If the trial court’s judgment is sustained, or the appeal dismissed, the final judgment ordinarily is that of the trial court. If, however, there is reversible error, the final judgment is that of the appellate court. Varley v. Varley, supra, 60-61, and 61 n.4; Saunders v. Saunders, supra.

Application of these principles to the circumstances of the present case demonstrates, beyond peradventure, that Funding never had, at any time, a final judgment that would have entitled it to levy execution to seize and sell assets belonging to Preisner or to Aetna. During the appeal of Funding’s judgment, execution was precluded by the outstanding stay. After reversal of the judgment, execution was forbidden under Reilly v. State, supra. The ultimate rendering of a judgment on a directed verdict in favor of Preisner entirely foreclosed any inchoate rights of recovery by Funding on the initial judgment.

The question before us is to what extent Aetna, as an accommodation party guaranteeing Preisner’s obligation to Funding, stands on a different footing. Despite Aetna’s settlement with Funding, it could not assert common law rights of subrogation against Preisner, because, as subrogee, it would only have been substituted to the rights and remedies that Funding had against Preisner. Home Owners’ Loan Corporation v. Sears, Roebuck & Co., 123 Conn. 232, 238-39, 193 A. 769 (1937). Since no such rights and remedies have been established to date, there is as yet nothing to which Aetna could be subrogated. For similar reasons, Aetna had no common law right of reimbursement for a settlement made with full awareness that Preisner was actively asserting that he had no liability to Funding. See In re V. Pangori & Sons, Inc., 53 Bankr. 711, 716, 717-22 (E.D. Mich. 1985); L. Simpson, Suretyship (1950) § 48, pp. 228-30. Aetna maintains, however, that its indemnification contract with Preisner provides it with a defense, as a matter of law, to Preisner’s conversion action.

Aetna’s argument has three components. Aetna maintains that it was entitled to foreclose on the secured collateral covered by its security agreement with Preisner because: (1) under the express terms of its indemnity agreement with Preisner, its rights became fixed when it became obligated to pay the Funding judgment; (2) the indemnity agreement gave it a right of subrogation; and (3) the indemnity agreement became enforceable when Preisner stipulated, in the Funding action, that a third party judgment would enter against him if Funding recovered a judgment against Aetna. We are unpersuaded.

Under the terms of the agency loan guarantee agreement, Preisner expressly agreed, in paragraph 4, “to indemnify Aetna if it becomes obligated to make any payment or sustains any loss as a result of the failure of the Agent [Preisner] to promptly pay the aforesaid notes when they become due without any extension of time of payment.” The security interest that the loan guarantee provided for Aetna was intended to secure the payment of all “obligations and indebtedness, of whatever kind and whenever created, of the Agent [Preisner] to Aetna described in paragraphs 4 or 5 hereof.” In its first argument, Aetna reads these provisions to require indemnification because it became “obligated” to Funding by the trial court judgment in the Funding action.

As we have already indicated, in this case Funding itself had no enforceable judgment against either Aetna or Preisner. The trial court judgment, which was originally stayed and ultimately reversed, cannot be said to have “obligated” Aetna to make any payment. Aetna has not argued that, absent the judgment, it would have become obligated to pay the Preisner note simply because Preisner refused to pay the note when it became due. At oral argument, Aetna conceded that it had not established a claim that it had sustained “any loss” attributable to Preisner’s default except insofar as that loss was derived from the judgment. Aetna’s unilateral withdrawal of its appeal in the Funding action did not make that judgment final as against Preisner when Preisner actively continued to pursue the appeal to establish the merits of his defense against Funding.

Aetna’s second argument is that the indemnity provision of the loan guarantee gave it a right to subrogation regardless of Preisner’s liability to Funding. It relies on a provision of the Restatement of Judgments governing the effect on an indemnitor of a judgment against the indemnitee. Under the 2 Restatement (Second), Judgments (1982) § 57, a person who has an obligation to indemnify another is estopped from disputing the existence and extent of the indemnitee’s liability to an injured person arising out of a judgment against the indemnitee, when the indemnitor was given notice of the action and an opportunity to assume or participate in its defense. The comment to that section suggests that, if the indemnitor assumes control of the defense of the action, he will then be “precluded from relitigating issues determined therein in a subsequent action concerning his obligation to indemnify.” Id., comment a, p. 78. Nothing either in the black letter or the comment defines what constitutes the “judgment” that gives rise to estoppel. As the Reporter for the Restatement has indicated in his treatise, it would make little sense to accord preclusive effect to a judgment that has been reversed on appeal. See F. James & G. Hazard, Civil Procedure (3d Ed. 1985) § 11.4, p. 592. The parties have cited no case that would support such a proposition, and we have found none.

Third, Aetna contends that it acquired a right to indemnification when Preisner stipulated, in the Funding action, that a third party judgment would enter against him if Funding recovered a judgment against Aetna. That judgment became final, according to Aetna, when it withdrew its appeal after the settlement with Funding. After that withdrawal, it claims that only Preisner’s appeal remained outstanding, and the only judgment that was set aside was that pertaining to Preisner’s appeal. In this court’s opinion in the Funding action, we noted, however, that Preisner had pursued his appeal both as defendant and as third party defendant. Funding Consultants, Inc. v. Aetna Casualty & Surety Co., supra, 638. We indicated, in a footnote, that we assumed that “our resolution of the issues arising pursuant to the underlying complaint [would] serve to resolve the appeal concerning the third party complaint.” Id., 638-39 n.2. Furthermore, the judgment that we set aside was a single judgment encompassing both the complaint and the third party complaint. In these circumstances, we would be loath to interpret Preisner’s stipulation as binding upon Preisner, regardless of reversal of the Funding action. Aetna’s position to the contrary is, in any case, undermined by subsequent proceedings initiated by Preisner to seek dismissal of Aetna’s third party complaint after Preisner had secured a directed verdict against Funding. Although Aetna attempted to reserve its rights under the judgment that had been set aside, it did in fact withdraw the third party action. Having foregone the opportunity to litigate its interpretation of the stipulation, Aetna cannot now rely, as a matter of law, on its version of what the stipulation meant.

For these reasons, the trial court was in error in granting the defendants’ motion for partial summary judgment. Preisner and his coplaintiff have not appealed the trial court’s denial of their motion for partial summary judgment and that motion is therefore not before us.

II

Preisner and his coplaintiff have also appealed the trial court’s denial of their motion to amend their complaint to add a fifth count alleging noncompliance with statutory requirements for reasonable notice before disposition of secured collateral. General Statutes § 42a-9-504. The original complaint was filed on November 16,1982, and the motion for amendment was filed on May 3, 1985, and denied on October 3, 1985. The amendment was addressed solely to Aetna, the party who undertook to sell the secured collateral, and not to Suzio, who purchased it. At the time the motion for amendment was filed, the motion for partial summary judgment in favor of Aetna had already been granted. Under those circumstances, it was not an abuse of the trial court’s discretion, when the motion was ruled upon at trial, to refuse to permit the amendment. Beckman v. Jalich Homes, Inc., 190 Conn. 299, 303, 460 A.2d 488 (1983); Lawson v. Godfried, 181 Conn. 214, 216, 435 A.2d 15 (1980). Our holding should not be understood, however, to preclude reconsideration of the motion to amend by the trial court in light of the further proceedings that are now required by our decision setting aside the partial summary judgment in favor of Aetna.

There is error, the judgment is set aside and the case is remanded for further proceedings in accordance with this opinion.

In this opinion the other justices concurred.

       For present purposes, we need not address the considerable overlap between the terms accommodation party, surety and guarantor. See General Statutes §§ 42a-3-415 and 42a-3-416.

       Suzio is protected as a bona fide purchaser under General Statutes § 42a-9-504 which provides in relevant part: “secured party’s right to DISPOSE OF COLLATERAL AFTER DEFAULT; EFFECT OF DISPOSITION. . . . (4) When collateral is disposed of by a secured party after default, the disposition transfers to a purchaser for value all of the debtor’s rights therein, discharges the security interest under which it is made and any security interest or lien subordinate thereto. The purchaser takes free of all such rights and interests even though the secured party fails to comply with the requirements of this part or of any judicial proceedings (a) in the case of a public sale, if the purchaser has no knowledge of any defects in the sale and if he does not buy in collusion with the secured party, other bidders or the person conducting the sale; or (b) in any other case, if the purchaser acts in good faith.”

       Aetna might, of course, have drafted either an indemnity agreement or a security agreement that would specifically have defined additional events of default. For example, Aetna might have stipulated that the loan guarantee would be in default upon any nonpayment by Preisner, upon the entry of any judgment against him, upon the deterioration in value of the secured collateral, or even upon Aetna’s deeming itself insecure. See General Statutes § 42a-1-208; 2 G. Gilmore, Security Interest in Personal Property (1965) § 43.4, p. 1196.

       The plaintiffs note that their motion for amendment was filed well in advance of the actual trial in this case, but nothing in the record demonstrates that their motion was pressed before that time.


author: Per Curiam.

text:
    State of Connecticut v. James Y. Hope
    (12311)
    Peters, C. J., Healey, Shea, F. Hennessy and Barall, Js.
    Argued April 3
    decision released May 5, 1987

      C. Robert Satti, Sr., state’s attorney, with whom, on the brief, was Michael L. Regan, deputy assistant state’s attorney, for the appellant (state).

      Hubert J. Santos, for the appellee (defendant).
   Per Curiam.

The dispositive issue in this case is whether events have so overtaken the state’s appeal that it has become moot. The state charged the defendant, James Y. Hope, in a two count indictment, with the crimes of conspiracy to commit capital felony murder in violation of General Statutes §§ 53a-48 (a) and 53a-54b (2) and capital felony murder in violation of General Statutes §§ 53a-54b (2) and 53a-8. On the first count, the defendant, after a trial to a jury, was found not guilty. That count is not before us on this appeal. On the second count, the defendant, after the jury had been sworn, filed a motion for dismissal which the trial court granted, with prejudice. The state, with the permission of the trial court, appealed from the dismissal of the second count of the indictment. Because we conclude that the state’s appeal is moot, we dismiss the appeal.

The second count of the indictment charged the defendant with having committed the crime of capital felony murder in the following manner. It alleged that, in Waterford and East Lyme, some time between June 1,1981, and August 9,1981, one Geraldine Burke had hired John J. McGann, for his pecuniary gain, for the purpose of causing the death of her husband, Donald C. Burke. It charged, further, that “on or about August 9, 1981, in the Town of Waterford . . . the said Donald C. Burke was murdered by a person or persons, including said James Y. Hope, which person or persons with intent to cause the death of Donald C. Burke, caused the death of said Donald C. Burke.”

The trial court determined, on the motion of the defendant Hope, after his trial had begun, that this second count should be dismissed for failure to allege the essential elements of the crime of capital felony murder. The court construed § 53a-54b (2) to require that the person who commits the murder be the one hired to commit it. In the absence of an allegation that McGann, the person alleged to have been hired for pecuniary gain, actually participated in the murder directly or through agents acting on his behalf, the trial court concluded that this count of the indictment was facially defective. The court also concluded that the indictment as to the second count could not be amended to supply the essential element that it had found to be missing, and that no lesser included offense could be charged on a count that was void in its entirety.

During the pendency of the state’s appeal from the dismissal of the second count in this case, this court decided State v. McGann, 199 Conn. 163, 506 A.2d 109 (1986). In that case, the trial court had found John J. McGann guilty of capital felony murder for his role in the murder of Donald C. Burke. The evidence produced at the McGann trial showed that Geraldine Burke had paid McGann $3500 so that one George Rooney would kill her husband. McGann had secretly kept $500 of this money for his own use. Rooney had accepted the remaining $3000 without intending in fact to kill Donald Burke. Id., 171. When it became clear that Rooney would neither kill her husband nor return the money, Geraldine Burke had arranged with John McGann and James Hope, the defendant in this case, for Donald Burke to be killed at the Burke home. Id., 172-73. On these facts, we determined that the evidence supported the finding of the trial court that McGann, because of his secret retention of the $500, had committed murder for pecuniary gain. Nonetheless, because Geraldine Burke did not know of McGann’s fraudulent retention of this money, we held that the hiring relationship required by the statute was absent. Accordingly, we concluded that “the circumstances of [McGann’s] involvement in the murder of Donald Burke [did] not bring him within the category of ‘hired assassin’ that the legislature sought to punish for the offense of capital felony” murder. Id., 178. We ordered McGann’s acquittal of that felony but remanded the case for his resentencing on the lesser included crime of murder.

As the state acknowledges, the defendant can no longer be tried on a charge of capital felony murder in light of our determination that McGann was not a hired assassin under the terms of § 53a-54b (2). It was never alleged that the defendant was himself hired for pecuniary gain. He cannot be held liable as an accessory on this charge in the absence of evidence that anyone else committed a capital felony murder. The specific issue on which the trial court ruled, in its mid-trial dismissal of the charge of capital felony murder contained in count two of the indictment, is therefore moot. There is no meaningful relief that we could afford the state on that issue even if we were to conclude that the trial court had erroneously considered this motion during the defendant’s trial or that the trial court had erred in its substantive resolution of the matters raised by the motion to dismiss. Hartford Principals’ & Supervisors’ Assn. v. Shedd, 202 Conn. 492, 496-98, 522 A.2d 264 (1987); Shays v. Local Grievance Committee, 197 Conn. 566, 571-74, 499 A.2d 1158 (1985).

The parties urge us nonetheless to hear their claims with regard to the state’s contention that the state can still try the defendant either as a principal or as an accessory to murder. The questions they have raised include the following: (1) Was the trial court correct in ruling that an indictment that fails to allege an essential element of the crime charged cannot be amended without resubmission of the case to the indicting grand jury? (2) Was the trial court correct in ruling that an indictment that is void in its entirety precludes the state from pursuing a lesser included offense? (3) Should this appeal be dismissed because the state is barred from retrying the defendant by principles of double jeopardy arising both out of the defendant’s acquittal of the conspiracy count and out of the mid-trial dismissal of the capital felony murder count with prejudice?

The one thing that is clear about these disputed issues is that they raise questions of considerable difficulty that may seriously implicate a number of significant constitutional rights. We have no way of predicting which of these questions would again be raised in the future were the state to elect to reprosecute the defendant for the murder of Donald Burke. At the moment, all we have before us is a case in which we can order no immediately effective relief because the defendant concededly cannot be retried for capital felony murder. In these circumstances, discretionary prudential concerns counsel against our undertaking to render an opinion that would, in effect, be merely advisory. Pellegrino v. O’Neill, 193 Conn. 670, 683, 480 A.2d 476, cert. denied, 469 U.S. 875, 105 S. Ct. 236, 83 L. Ed. 2d 176 (1984); Reply of the Judges, 33 Conn. 586 (1867); see also Motor Vehicle Manufacturers Assn. of the United States, Inc. v. O’Neill, 203 Conn. 63, 75, 523 A.2d 486 (1987).

The appeal by the state is dismissed as moot.

       “[General Statutes] Sec. 53a-48. conspiracy, renunciation, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.
      “(b) It shall be a defense to a charge of conspiracy that the actor, after conspiring to commit a crime, thwarted the success of the conspiracy, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.”

       General Statutes § 53a-54b (2) provides: “capital felony. A person is guilty of a capital felony who is convicted of any of the following . . . (2) murder committed by a defendant who is hired to commit the same for pecuniary gain or murder committed by one who is hired by the defendant to commit the same for pecuniary gain.”

       “[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”