author: Peters, C. J.

text:
    Timothy E. Dills et al. v. Town of Enfield et al.
    (13533)
    Peters, C. J., Healey, Shea, Callahan and Covello, Js.
    Argued February 8
    decision released April 18, 1989

      Hubert J. Santos, for the appellant (plaintiff Neecon Corporation).

      Philip S. Walker, with whom were Joseph L. Hammer and Nora R. Dannehy, for the appellees (defendants).
   Peters, C. J.

The principal issue in this appeal is whether the doctrine of commercial impracticability excuses a developer from submitting construction plans when he discovers that necessary financing has become unavailable. The plaintiffs, Timothy E. Dills and the Neecon Corporation, sued the defendants, the town of Enfield (town) and the Enfield development agency (agency), to recover a $100,000 deposit Dills had paid the agency under an option and contract for sale. The trial court referred the case to Attorney J. Read Murphy, a state trial referee appointed pursuant to General Statutes § 52-434 (a) (4). Following a hearing and the parties’ submission of briefs, the referee reported his findings of fact and recommended that judgment enter for the plaintiffs. The trial court rejected the referee’s recommendation, instead rendering judgment for the defendants. The plaintiff Neecon Corporation appealed to the Appellate Court and we transferred the case here pursuant to Practice Book § 4023. We find no error.

The relevant facts reported by the referee, accepted by the trial court and supported by the record are as follows. The town of Enfield instructed its development agency to solicit private developers for the Enfield Memorial Industrial Park to be constructed on town property. Pursuant to an earlier option agreement, on May 1, 1974, the plaintiff Dills and the development agency entered into a contract for the sale of the land to be developed. Dills at that time paid a $100,000 deposit toward the contract price of $985,900. The plaintiff Neecon Corporation, owned by Dills, was to perform the necessary work, and has become, by virtue of an assignment from Dills, the only remaining plaintiff in this appeal.

Under the terms of the contract, the development agency agreed to convey the property to the developer sixty days after the fulfillment of two conditions: (1) the submission and approval of construction plans in accordance with section 301 of the contract; and (2) the submission of evidence of financial capacity in accordance with section 304 of the contract. The contract also included provisions for its termination by either party. Section 702 (b) of the contract allowed the developer to withdraw and to reclaim his deposit if, after the preparation of construction plans satisfactory to the agency, the developer could not obtain the necessary mortgage financing. Section 703 (b) of the contract allowed the agency to terminate the contract, retaining the deposit as liquidated damages, if the developer failed to submit acceptable construction plans.

Dills never submitted construction plans that were acceptable to the agency. A set of plans denominated “preliminary” was rejected by the agency on June 24, 1974. The agency accepted a revised set of “preliminary plans” and drawings three months later, but demanded the submission of full construction plans and specifications by early December. The referee found that the preliminary sets of plans did not themselves meet the definition of “construction plans” in section 301. The referee agreed with the agency’s interpretation of section 301 of the contract as requiring the developer to submit full construction plans within 210 days of the agency’s approval of preliminary plans.

The reason Dills failed to submit construction plans was that, despite diligent efforts, he was unable to obtain mortgage financing. Thereafter, both parties attempted, with proper notification, to invoke the contract’s termination clauses. On December 19, 1974, the agency, having been informed by Dills of his financial difficulties, voted to terminate the agreement pursuant to section 703 (b) of the contract of sale and to retain the $100,000 deposit as liquidated damages. On December 22,1974, Dills’ attorney notified the agency that, because of Dills’ inability to obtain financing within the time specified in the contract, Dills was terminating the agreement pursuant to section 702 (b) of the contract of sale.

In the referee’s view, although Dills had never submitted anything more than “preliminary plans,” the fact that he could not obtain financing had become evident and “[t]he costly rendition of detailed drawings and specifications which were part of the Construction Plans thus became a useless act.” He concluded, therefore, that “[t]he duty of [Dills] to provide full Construction Plans by December, 1974 was discharged by supervening impracticability.” Accordingly, he recommended that the plaintiffs recover their $100,000 deposit.

After unsuccessful efforts to persuade the referee to make material changes in his report, the defendants moved the trial court, pursuant to Practice Book § 440, to reject the report and refer the case to another referee for a new trial, or to revoke the reference and leave the case to be disposed of in court. Alternatively, the defendants took exception in the trial court to the referee’s report and findings of fact and moved the court, pursuant to Practice Book § 439, to grant the corrections they had proposed in their motion to correct and to strike the corrections granted at the plaintiff’s request.

On July 14, 1988, the trial court issued its decision rejecting the referee’s recommendation that judgment enter for the plaintiffs. The court accepted the referee’s findings that the plans submitted by Dills were preliminary plans but not construction plans as defined by the contract. It also accepted the finding that Dills had unsuccessfully engaged in “diligent efforts” to secure financing. Reviewing the history of the contract negotiations between the parties, the court held that the defendants were entitled to judgment. The court noted that the town had been concerned about the developer’s reliability because an earlier option agreement between Dills and the town, concerning this same property, had failed to come to fruition. In response, Dills had publicly assured the town “that he was going to be putting $250,000 on the line,” the contemplated cost of preparing the construction plans. Because the various contract provisions, including the furnishing of construction plans, had been bargained for, the court concluded that Dills could not invoke the doctrine of impracticability in this case. Absent a showing of the impracticability of preparing and submitting construction plans, the court held that “the facts found by the attorney-referee can only lead to one conclusion,” i.e., judgment for the defendants.

After the trial court denied the plaintiffs’ motion for reconsideration, the plaintiff Neecon took the present appeal. It claims that the trial court erred in (1) rendering judgment for the defendants, rather than either rendering judgment for the plaintiffs or revoking the reference to the attorney state trial referee and remanding the case for further findings by an appropriate factfinder, and (2) finding facts not found by the attorney state trial referee. We conclude that the trial court did not err either procedurally or substantively.

I

In its procedural attack on the trial court’s judgment, the plaintiff proceeds from the premise that reference of a case to an attorney trial referee necessarily limits the subsequent authority of the trial court to address issues of law. According to the plaintiff, the issuance of a referee’s report deprives the court of authority to render any judgment except that recommended by the referee. The plaintiff maintains that, if the court, disagreeing with the referee, decides to reject the report, the court must refer the case for a new trial either before a new referee or before another trial judge. We disagree.

This court discussed the relationship between attorney trial referees and trial court judges in Seal Audio, Inc. v. Bozak, Inc., 199 Conn. 496, 508 A.2d 415 (1986), in which we upheld the constitutionality of General Statutes § 52-434 (a) (4), the statute authorizing the chief justice to appoint such referees. We concluded that, although attorney trial referees could act as fact-finders, in the same manner as committees appointed pursuant to General Statutes § 52-425; id., 504-505; they lacked the power to render judgments. Id., 502. The reports of referees are therefore “reviewable in accordance with well established procedures prior to the rendition of judgment by the court. Practice Book §§ 428 through 445.” Id.; see also Bowman v. 1477 Central Avenue Apartments, Inc., 203 Conn. 246, 250, 524 A.2d 610 (1987); Logan v. Lenhart, 158 Conn. 611, 612, 259 A.2d 643 (1969). As provided in Practice Book § 434, a referee’s determinations of law in his or her report are not binding on the court. Seal Audio, Inc. v. Bozak, Inc., supra, 509-10.

Our holding in Seal Audio, Inc., necessarily implies that the trial court has the power to render whatever judgment appropriately follows, as a matter of law, from the facts found by the attorney trial referee. The nondelegable judicial duty to render judgments is not limited to endorsement of the decision recommended by the referee. The trial court’s unlimited authority in this regard is underscored by the first sentence of Practice Book § 443, which provides, without qualification: “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected.” (Emphasis added.) Although the remainder of Practice Book § 443 contemplates the possibility of further proceedings before a referee or a court, we construe that direction to apply only when a trial court discovers material errors in the referee’s factual findings. See Rostenberg-Doern Co. v. Weiner, 17 Conn. App. 294, 300, 552 A.2d 827 (1989).

We therefore conclude that the trial court had the inherent authority, even without a request for judgment by the defendants, to render whatever judgment was appropriate in light of the facts found by the attorney trial referee. There was no procedural impediment to the trial court’s exercise of this jurisdiction.

II

Even though the trial court had jurisdiction to render an appropriate judgment, the outstanding unrevoked reference of the litigation to the attorney trial referee deprived the trial court of the authority to retry the case. The court could not find additional facts or reject others “unless a material fact has been found without evidence or the [referee] has failed to find an admitted or undisputed fact, or has found a fact in such doubtful language that its real meaning does not appear.” Practice Book § 439; see Bowman v. 1477 Central Avenue Apartments, Inc., supra, 256-57; Cohn v. Hartford, 130 Conn. 699, 704-705, 37 A.2d 237 (1944). Thus, our review of the substantive merits of the trial court’s judgment devolves into two questions: (1) did the court exceed its authority by finding additional facts or rejecting facts found by the referee; and (2) did the court err in applying the law to the facts found?

A

The plaintiff claims that the trial court improperly exercised the role of factfinder by concluding that: (1) the parties had “bargained for” the two contract provisions at issue herein (the provisions for submission of construction plans and for financing); and (2) the contract provisions were clear and unambiguous. The trial court expressly disavowed such a role. We hold that the trial court did not exceed its authority.

The plaintiff argues that the trial court improperly found facts about the bargaining process that led to the contract in this case. The trial court did recount the history of the transaction, and noted the defendants’ allegation that Dills had indicated his readiness to invest $250,000 in procuring construction plans. The referee made no finding that the contract between the parties had resulted from the defendants’ reliance on this representation. Nonetheless, we fail to perceive how the plaintiff was injured by the trial court’s comments. The referee never found that the parties had not bargained for the contractual provisions here at issue. What motivated the defendants to enter into the contract is unimportant in this case. What is important is that the parties intended that Dills assume full financial responsibility until such time as he submitted construction plans acceptable to the defendants, and the referee so found.

The plaintiff also contends that the trial court’s statement that the “contract provisions are clear and unambiguous” in effect rejects the referee’s finding that they were indeed ambiguous. The plaintiff contends that the referee’s findings that section 301 called for a two-step procedure (preliminary plans followed by full construction plans within 210 days) and that zoning approval led the developer to the next two steps (arranging financing and preparing detailed drawings and specifications sufficient to build the building) amounted to a finding of ambiguity. We disagree.

Examination of the reason given in the referee’s report for discharging the plaintiffs of their contractual obligation demonstrates that the trial court read the report correctly. The referee made no express finding that there was any ambiguity in the provisions in sections 303 or 702 (b) of the contract, which required the plaintiffs to submit acceptable construction documents before they could claim contractual relief because of financial adversity. Notably, the referee did not base his discharge of the plaintiffs on a finding that the parties had intended the termination clause in the contract to provide relief for the plaintiffs in the present circumstances. In invoking the doctrine of commercial impracticability, the referee determined that, although the contract unambiguously imposed on the plaintiffs a contractual duty to perform, the plaintiffs should nonetheless be excused from their nonperformance because of supervening circumstances. The referee’s earlier statements that other parts of section 301 were confusing did not contradict his implicit finding that the contract clearly made the submission of construction plans a condition precedent to recovering the deposit. Thus, we conclude that the trial court did not exceed its authority by impermissibly engaging in fact-finding contrary to the report of the referee.

B

Finally we must decide whether the trial court erred as a matter of law in rejecting the referee’s determination, endorsed by the plaintiff on appeal, that the impracticability doctrine excused Dills’ failure to deliver construction plans to the agency. The plaintiff contends that Dills’ inability to obtain such financing made submitting the construction plans a “futile” and “useless act,” and therefore the doctrine of supervening impracticability discharged his duty to submit the plans. We hold, as did the trial court, that “[t]he doctrine of impracticability and impossibility . . . [is] not relevant to this case.”

The impracticability doctrine represents an exception to the accepted maxim of pacta sunt servanda, in recognition of the fact that certain conditions cannot be met because of unforeseen occurrences. Cf. Aetna Casualty & Surety Co. v. Murphy, 206 Conn. 409, 413, 538 A.2d 219 (1988). A party claiming that a supervening event or contingency has prevented, and thus excused, a promised performance must demonstrate that: (1) the event made the performance impracticable; (2) the nonoccurrence of the event was a basic assumption on which the contract was made; (3) the impracticability resulted without the fault of the party seeking to be excused; and (4) the party has not assumed a greater obligation than the law imposes. 2 Restatement (Second), Contracts § 261; E. Farnsworth, Contracts (1982) § 9.6, p. 678. We discuss only the first two prongs of this test in disposing of the plaintiff’s argument.

Although courts in recent years have liberalized the requirements for such an excuse; see G. Gilmore, The Death of Contract (1972) pp. 80-81; H. Berman, “Excuse for Nonperformance in Light of Contract Practices in International Trade,” 63 Colum. L. Rev. 1413, 1414 (1963); only in the most exceptional circumstances have courts concluded that a duty is discharged because additional financial burdens make performance less practical than initially contemplated. See, e.g., Neal-Cooper Grain Co. v. Texas Gulf Sulphur Co., 508 F.2d 283, 294 (7th Cir. 1974) (party not allowed “to escape a bad bargain merely because it is burdensome”); American Trading & Production Corporation v. Shell International Marine, Ltd., 453 F.2d 939, 942 (2d Cir. 1972) (closing of Suez Canal requiring charterer to sail nearly twice as many miles at a cost of nearly one third more than the contract price does not excuse performance); United States v. Wegematic Corporation, 360 F.2d 674, 676-77 (2d Cir. 1966) (duty of manufacturer to produce revolutionary computer system not excused because of “engineering difficulties” requiring two years and $1.5 million to correct); Peerless Casualty Co. v. Weymouth Gardens, 215 F.2d 362, 364 (1st Cir. 1954) (increased costs caused by the unexpected outbreak of war does not constitute superior force ending obligation of contract); Matter of Westinghouse Electric Corporation, 517 F. Sup. 440, 452-53 (E.D. Va. 1981) (duty to remove spent fuel not excused merely because reprocessing of the fuel became unprofitable); see also Connecticut General Statutes Annotated § 42a-2-614, comment 4; E. Farnsworth, supra, p. 680; 6 A. Cor-bin, Contracts (1962) § 1333; 16 S. Williston, Contracts (3d Ed. Jaeger 1978) § 1968; J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 3-9, pp. 131-32. Thus, the fact that preparing the construction plans would have cost Dills a great deal of money (more than the deposit he sought to recover) did not excuse him from submitting them as the contract provided.

Furthermore, the event upon which the obligor relies to excuse his performance cannot be an event that the parties foresaw at the time of the contract. We have previously held that “[t]he regular enforcement of conditions is . . . subject to the competing but equally well established principle that the occurrence of a condition may be excused in the event of impracticability ‘if the occurrence of the condition is not a material part of the agreed exchange and forfeiture would otherwise result.’ 2 Restatement (Second), Contracts § 271; 6 Cor-bin, Contracts (1962) § 1362; 5 Williston, Contracts (3d Ed. 1961) § 793.” (Emphasis added.) Grenier v. Compratt Construction Co., 189 Conn. 144, 148-49, 454 A.2d 1289 (1983); see also West Haven Sound Development Corporation v. West Haven, 201 Conn. 305, 313, 514 A.2d 734 (1986). Thus, the “central inquiry” is whether the nonoccurrence of the alleged impracticable condition “was a basic assumption on which the contract was made.” General Statutes § 42a-2-615 (a); 2 Restatement (Second), Contracts § 261; E. Farnsworth, supra, § 9.6, pp. 679-84.

In this case the contingency upon which fulfilling the contract allegedly depended was Dills’ obtaining the requisite financing. We cannot conclude, however, that Dills’ failure to obtain financing was “an event the nonoccurrence of which was a basic assumption on which the contract was made.” Indeed, section 702 (b) of the contract of sale demonstrates that the parties expressly contemplated that Dills might encounter financial difficulties. The contract allowed Dills to terminate for this reason “after preparation of Construction Plans satisfactory to the Agency.” If “an event is foreseeable, a party who makes an unqualified promise to perform necessarily assumes an obligation to perform, even if the occurrence of the event makes performance impracticable.” E. Farnsworth, supra, p. 686.

This case, like virtually every case involving discharge from an obligation to perform, concerns the issue of which party bears the loss resulting from an event that renders performance by one party uneconomical. See R. Posner, Economic Analysis of Law (3d Ed. 1986) pp. 93-94; R. Posner & A. Rosenfield, “Impossibility and Related Doctrines in Contract Law: An Economic Analysis,” 6 J. Legal Stud. 83, 86-87 (1977). “Determining whether the non-occurrence of a particular event was or was not a basic assumption involves a judgment as to which party assumed the risk of its occurrence .... In making such determinations, a court will look at all circumstances, including the terms of the contract.” 2 Restatement (Second), Contracts, c. 11, introductory note. “Since impossibility and related doctrines are devices for shifting risk in accordance with the parties’ presumed intentions, which are to minimize the costs of contract performance, one of which is the disutility created by risk, they have no place when the contract explicitly assigns a particular risk to one party or the other.” Northern Indiana Public Service Co. v. Carbon County Coal Co., 799 F.2d 265, 278 (7th Cir. 1986); see also Wasserman Theatrical Enterprise, Inc. v. Harris, 137 Conn. 371, 374-75, 77 A.2d 329 (1950). Where, as in this case, sophisticated contracting parties have negotiated termination provisions, courts should be slow to invent additional ways to excuse performance. We exercise such caution in this case.

There is no error.

In this opinion the other justices concurred.

       Section 301 of the contract of sale provided: “plans for construction. Plans and specifications with respect to the Development of the Property and construction thereon shall be in conformity with the Development Plan, the Agreement, and all applicable State and local laws and regulations. As promptly as possible after the date of the Agreement, and, in any event, no later than the time specified therefor in Paragraph (a), Section 4 of Part I hereof, the Developer shall submit to the Agency, for approval by the Agency, plans, drawings, specifications, and related documents, and the proposed construction schedule (which plans, drawings, specifications, related documents, and progress schedule, together with any and all changes therein that may hereafter be made and submitted to the Agency as herein provided, are, except as otherwise clearly indicated by the context, hereinafter called ‘Construction Plans’) with respect to the Development to be constructed by the Developer on the Property, in sufficient completeness and detail to show that such improvements and construction thereof will be in accordance with the Development Plan and the Agreement. The Agency shall, if the Construction Plans originally submitted conform to the provisions of the Development Plan and the Agreement, approve in writting such Construction Plans and no further filing by the Developer or approval by the Agency thereof shall be required except with respect to any material change. Such construction plans shall, in any event, be deemed approved unless rejection thereof in writing by the Agency, in whole or in part, setting forth in detail the reasons therefor, shall be made within thirty (30) days after the date of their receipt by the Agency. If the Agency so rejects the Construction Plans in whole or in part as not being in conformity with the Development Plan or the Agreement, the Developer shall submit new or corrected Construction Plans which are in conformity with the Development Plan and the Agreement, within the time specified therefor in Paragraph (b), Section 4 of Part I hereof, after written notification to the Developer of the rejection. The provisions of this Section relating to approval, rejection, and submission of corrected Construction Plans herein above provided with respect to the original Construction Plans shall continue to apply until the Construction Plans have been approved by the Agency: PROVIDED, that in any event the Developer shall submit Construction Plans which are in conformity with the requirements of the Development Plan and the Agreement, as determined by the Agency, no later than the time specified therefor in Paragraph (c), Section 4 of Part I hereof. All work with respect to the Development to be constructed or provided by the Developer on the Property shall be in conformity with the Construction Plans as approved by the Agency.”

       Section 304 of the contract of sale provided: “The submission of Construction Plans and their approval by the Agency as provided in Section 301 hereof, and the submission of evidence of equity capital and commitments for mortgage financing as provided in Section 303 hereof are conditions precedent to the obligation of the Agency to convey the Property to the Developer.”

       Section 702 of the contract of sale provided in relevant part: “In the event that . . . (b) the Developer shall, after preparation of Construction Plans satisfactory to the Agency, furnish evidence satisfactory to the Agency that it has been unable, after and despite diligent effort for a period of sixty (60) days after approval by the Agency of the Construction Plans, to obtain mortgage financing for the construction of the Development . . . then the Agreement shall, at the option of the Developer, be terminated by written notice thereof to the Agency, and any deposit paid by the Developer be returned to it . . . .”

       Section 703 of the contract of sale provided in relevant part: “In the event that . . . (b) the Developer does not submit Construction Plans as required by the Agreement . . . then the Agreement, and any rights of the Developer . . . shall, at the option of the Agency, be terminated by the Agency, by written notice thereof to the Developer, in which event, the deposit shall be retained by the Agency as liquidated damages . . .
      Section 303 of the contract of sale provided that “|a]s promptly as possible after approval by the Agency of the Construction Plans . . . the Developer shall submit to the Agency evidence satisfactory to the Agency that the Developer has the equity capital and commitments for mortgage financing necessary for construction of the Development.” (Emphasis added.)

       Although the contract makes no mention of “preliminary plans,” the plaintiff claims that the agency required such plans to gain zoning approval, which Dills received. The defendants have not disputed this representation and the referee stated that that section contemplated such “preliminary plans.”

       By letter dated December 26,1974, the agency gave Dills notice of this action.

       Section 702 (b) of the contract allowed the developer sixty days to obtain mortgage financing unless the agency requested that he extend his efforts for another sixty days. The agency had made no such request.

       On July 22, 1988, the plaintiff moved the court to set aside, reopen, reconsider or modify the judgment rendered, claiming that the court had no authority to render judgment for the defendants and that it had found certain facts not found by the referee or rejected by him. The trial court denied the plaintiff’s motion, asserting that it did have the authority to render judgment for the defendants, that it had “accepted the findings and applied the law it thought was correct to those findings” and that “based on [the referee’s] findings,” the court was permitted to render judgment for the defendant.

       General Statutes § 52-434 (a) (4) provides in relevant part: “[T]he chief justice may appoint, from qualified members of the bar of the state, who are electors and residents of this state, as many state referees as he may from time to time deem advisable or necessary.”

       Practice Book § 443 provides: “The court shall render such judgment as the law requires upon the facts in the report as it may be corrected. If the court finds that the committee has materially erred in his rulings or that by reason of material corrections in his findings the basis of the report is subverted or that there are other sufficient reasons why the report should not be accepted, the court shall reject the report and refer the matter to the same or another committee for a new trial or revoke the reference and leave the case to be disposed of in court.”

       In oral argument before this court the plaintiff also contended that the trial court exceeded its authority when it stated that certain town officials had expressed concern that Dills would not come through with the plans and when it stated that Dills had determined that financing was unavailable because the climate for this kind of project had changed. Our review of the record and the transcript of the plaintiffs postjudgment motion reveals that it did not bring these claims to the attention of the trial court, and therefore we do not review them. Practice Book § 4185.

       In his Rulings on Motions to Reconsider Rulings on Evidence, the referee stated: “I do not find that the Agency entered into the Agreement on the basis of a representation of $250,000 of costs to prepare Construction Plans. Plaintiffs costs may not have risen to this amount, but he certainly incurred costs (some $73,000) and put the deposit at risk.”

       The referee stated in his memorandum: “Section 303, Part II, requires the Developer to submit to the Agency ‘as promptly as possible after approval by the Agency of the Construction Plans . . .’ evidence that it had mortgage financing necessary for construction.”

       See footnotes 3 and 4, supra.

       The referee stated flatly: “The duty of the plaintiff to provide full Construction Plans by December, 1974 was discharged by supervening impracticability.” We disagree with the plaintiffs characterization of the referee’s report as including a central finding of ambiguity to which the conclusion of impracticability was merely ancillary.

       The doctrine of “impossibility” has come to include “physical impossibility,” “frustration of purpose” and “impracticability” because of contingencies rendering performance more costly. See 6 A. Corbin, Contracts (1962) § 1325; 16 S. Williston, Contracts (3d Ed. Jaeger 1978) § 1932; G. Gilmore, The Death of Contract (1972) pp. 80-82. This case concerns only the last of these.

       General Statutes § 42a-2-615 (a) provides in pertinent part: “Delay in delivery or nondelivery in whole or in part by a seller . . . is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoeeurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.” (Emphasis added.) While the instant case does not concern the sale of goods, and therefore the Uniform Commercial Code does not apply, § 2-615 has been adopted by the Restatement and “promises to have a substantial influence on the law of contract generally . . . . ” E. Farnsworth, Contracts (1982) § 9.6, p. 677.

       The Restatement (Second) of Contracts § 261 provides: “Where, after a contract is made, a party’s performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary.” (Emphasis added.)

       Significantly, the defendants never conceded that the promised plans would have been of no use to them. Thus, it is far from certain that submitting the plans would have been a “futile act” from the defendants’ point of view.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Deborah J. Isaac, Administratrix (Estate of Redgnard Isaac) v. Mount Sinai Hospital et al.
    (13588)
    Healey, Shea, Callahan, Glass and Hull, Js.
    Argued February 9
    decision released April 18, 1989

      Joan C. Harrington, for the appellant (plaintiff).

      Carla R. Walworth, with whom, on the brief, were Philip S. Walker and Deborah S. Chang, for the appellee (named defendant).

      Louis B. Blumenfeld, with whom was Karen Jansen Casey, for the appellee (defendant St. Francis Hospital).

      Lois Tanzer, for the appellee (defendant Richard B. Weltman).

      Andrew J. O’Keefe, with whom was Maureen Sullivan Dinnan, for the appellee (defendant Anesthesia Associates, P.C.).
   Hull, J.

The dispositive issue in this case is whether the administratrix of a decedent’s estate can bring a new action for wrongful death under our accidental failure of suit statute, General Statutes § 52-592, where the original wrongful death action was dismissed for lack of subject matter jurisdiction because, at the time such original action was commenced, the individual bringing suit had not been appointed administratrix of the estate by the probate court. We conclude that § 52-592 authorizes such a second suit and that the trial court erred in dismissing it.

The factual and procedural background of this case is not in dispute. Redgnard Isaac died at Mt. Sinai Hospital in Hartford on April 10, 1979. On March 30, 1981, the plaintiff commenced a wrongful death action pursuant to General Statutes § 52-555 alleging negligence in the treatment of the decedent by the defendants Mt. Sinai Hospital, St. Francis Hospital, Dr. Richard B. Weltman, and Anesthesia Associates, P.C. The plaintiff alleged in the complaint that she had been appointed administratrix of the decedent’s estate on May 17,1979. In 1982, she discovered that she had been involved only in the transfer of survivorship property and had not been named administratrix. She was subsequently appointed administratrix of the decedent’s estate on September 28, 1982. Isaac v. Mount Sinai Hospital, 3 Conn. App. 598, 599, 490 A.2d 1024, cert. denied, 196 Conn. 807, 494 A.2d 494 (1985). By that time, however, the three year limitation period for bringing a wrongful death action under § 52-555 had passed. Id., 601.

On February 4, 1983, the defendants moved to dismiss the action for lack of subject matter jurisdiction on the ground that the plaintiff had failed to comply with the pr ovisions of § 52-555 that state that only an “executor or administrator” may bring an action thereunder. Id., 599. The trial court granted the motion to dismiss and the plaintiff appealed to the Appellate Court. The Appellate Court upheld the court’s dismissal for lack of subject matter jurisdiction, stating that a wrongful death action under § 52-555 may be maintained only by an executor or administrator of an estate, and at the time she brought suit the plaintiff was neither. Id., 600-601.

The plaintiff brought the present action for wrongful death on June 7,1985, against the same four defendants. The defendants moved to strike the complaint on the ground that it was barred by the statute of limitations contained in § 52-555, which provides that actions for wrongful death must be brought “within two years from the date when the injury is first sustained or discovered or . . . should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.” In granting the motion to strike, the court ruled that: (1) the time limitation for bringing an action under § 52-555 is a limitation of the liability itself and must be strictly complied with; (2) the second cause of action was the same cause of action as the original because it was the decedent’s claim for his injuries and death resulting from the same group of facts that made up the defendants’ alleged negligence; (3) General Statutes § 52-592, our accidental failure of suit statute, does apply to wrongful death cases; (4) the limitation portion of the wrongful death statute is substantive and may not be waived; (5) a cause of action for wrongful death does not arise and exist so that the statute of limitations can begin to run upon it until an administrator is appointed who can bring suit; and (6) the statute of limitations on the plaintiffs suit had run before she was appointed administratrix in September, 1982. The trial court did not further consider the effect of § 52-592 on this case. This appeal followed.

Although the parties have framed the issue in different ways, we consider all of the claimed issues to raise the question of whether the accidental failure of suit statute authorizes the plaintiff to bring a new action for wrongful death where the original action was dismissed because at the time it was commenced the plaintiff was in fact not the administratrix of the decedent’s estate.

We first note certain claims of the defendants with which we agree. It is undisputed that § 52-555 requires that an executor or administrator must bring a wrongful death action within the three year statute of limitations. “[Standing to bring a wrongful death action is . . . conferred only upon either an executor or administrator.” Isaac v. Mount Sinai Hospital, supra, 601. It is also undisputed that “[wjhere ... a specific time limitation is contained within a statute that creates a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter. ... In such cases, the time limitation is not to be treated as an ordinary statute of limitation, but rather is a limitation on the liability itself, and not of the remedy alone.” (Citations omitted.) Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987). We find all of these undisputed principles of law relied upon by the defendants, however, to be irrelevant to the issue involved in this case, i.e., whether the accidental failure of suit statute authorized the bringing of the second action. Our attention, therefore, must be focused on the accidental failure of suit statute, General Statutes § 52-592.

The case of Korb v. Bridgeport Gas Light Co., 91 Conn. 395, 99 A. 1048 (1917), furnishes an unusually strong foundation on which to build our analysis of the effect of § 52-592 on this case. In Korb, the plaintiff administrator brought an action under the provisions of § 4 of chapter 193 of the Public Acts of 1903 to recover for personal injuries resulting in the death of his intestate decedent. The pleadings revealed that the action was not commenced within one year from the neglect complained of as then required by the statute. The action was, however, commenced within one year after the entering of a judgment of nonsuit on a former action for the same cause begun within one year from the neglect. After a verdict and judgment for the plaintiff the defendant appealed, claiming, among other things, that the court erred in overruling its earlier demurrer to the complaint which contended that under the circumstances described above the plaintiff had not presented a good cause of action. Id., 396.

We concluded that the wrongful death statute involved created a liability unknown to common law and that the proviso therein limiting the time to bring an action under it to one year from the neglect complained of was something more than an ordinary statute of limitations. Id., 397. We stated that since the liability and the remedy were created by the same statute, the limitations of the remedy were to be treated as limitations of the right, and that if liability was to attach to the claimed offender, the statutory provision prescribing the limitation should be strictly observed. Id. We noted that if the wrongful death statute stood by itself, unaffected by other legislation, there could be no question but that the plaintiffs action had not begun seasonably and must fail. Id. We then noted: “We have, however, in § 1127 of the General Statutes a statute which is not to be ignored. It provides, among other things, that if any action, commenced within the time limited by law, shall fail for the reason, among others, that a judgment of nonsuit is rendered therein, the plaintiff may commence a new action for the same cause or subject of action at any time within one year after the determination of the original action. The language of this section, read in its natural meaning, appears to fit the present situation exactly, and to provide for an extension of the time limitation for the bringing of an action upon § 4 of the Act of 1903 under the conditions existing in the present case.” (Emphasis added.) Id., 397-98.

The defendant in Korb argued that the extension statute involved had no bearing or effect upon limitations contained in statutes creating a right and made an essential condition of the existence of that right. We held: “Section 1127 provides that if any action, commenced within the time limited by law, shall fail for specified causes, the plaintiff may bring a new action for the same cause within one year after the determination of the original action. This language certainly is general and comprehensive. It neither embodies exceptions or reservations, nor suggests any. The extension of time is in terms made applicable to all cases where a suit, seasonably begun, has failed for the causes stated. . . . The provision is remedial in its character. It was passed to avoid hardships arising from an unbending enforcement of limitation statutes. Those hardships are the same in character whether the statute be one which concerns the remedy only, or the right as well as the remedy. It should be so construed as to advance the remedy rather than to retard it.” Id., 401-402. We concluded that the time limitation in the wrongful death statute must be read together with the extension statute. The extension statute operated as a modification of the wrongful death statute and the defendant’s demurrer was properly overruled. Id., 402. In this regard, we find that in the present case our accidental failure of suit statute, General Statutes § 52-592, controls the outcome of this case, not the wrongful death statute, as the defendants claim and as the trial court ruled.

We have consistently held that our accidental failure of suit statute, General Statutes § 52-592, “is remedial and is to be liberally interpreted.” Ross Realty Corporation v. Surkis, 163 Conn. 388, 393, 311 A.2d 74 (1972); accord Baker v. Baningoso, 134 Conn. 382, 387, 58 A.2d 5 (1948); Johnston v. Sikes, 56 Conn. 589, 596 (1888) (a very liberal construction is given to saving statute). Keeping this in mind, we turn to the relevant criteria in § 52-592 that the plaintiff must satisfy in order to prevail: “If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits . . . because the action has been dismissed for want of jurisdiction, or the action has been otherwise . . . defeated . . . for any matter of form . . . the plaintiff . . . may commence a new action . . . for the same cause . . . within one year . . . .” The plaintiff claims that her second suit meets all of the statutory requirements.

The first issue is whether the original suit was an “action” within the meaning of § 52-592. In Baker v. Baningoso, supra, the plaintiff brought a second wrongful death action after the statute of limitations had run. The plaintiff claimed that the accidental failure of suit statute modified the wrongful death act and thus gave him an additional year to bring suit. We said: “Section 6024 [accidental failure of suit statute] does modify § 1005h [wrongful death statute] if the circumstances bring the case within its terms.” Id., 386, citing Korb v. Bridgeport Gas Light Co., supra.

General Statutes § 52-45a provides in pertinent part that “[c]ivil actions shall be commenced by legal process consisting of a writ of summons or attachment, describing the parties, the court to which it is returnable, the return day and the date and place for the filing of an appearance. The writ shall be accompanied by the plaintiffs complaint.” The plaintiffs suit met this straightforward statutory summary of the contents of a “civil action.”

In Carbone v. Zoning Board of Appeals, 126 Conn. 602, 13 A.2d 462 (1940), we held that the word “action” in the accidental failure of suit statute then in effect did not include administrative appeals. We said: “In Korb v. Bridgeport Gas Light Co., [supra], a case which the trial court held to be decisive of the issue presented on the demurrer, we held that § 6024 applied not only to obviate the running of statutes of limitation but also as regards limitations of time inherent in a cause of action created by statute. We pointed out (p. 401) that the language of the statute was general and comprehensive, neither embodying nor suggesting reservations or exceptions; that the extension of time was in terms made applicable to all cases where a ‘suit’ seasonably begun had failed for the causes stated; and that if there is to be any restriction, it must be the result of legal construction the reasons for which were not apparent. The action then before us was one brought as an ordinary civil action, and it was of such actions we were speaking. The reasons for construing the word ‘action’ in the statute as not including such a peculiar and wholely statutory proceeding as the one before us are not only apparent but compelling.” Id., 606-607. In Carbone we found such a reason in the fact that the fixing of brief periods for administrative appeals was evidently designed to secure a speedy determination of the issues involved. We concluded that to hold that an administrative appeal is an “action” within the meaning of § 6024 would have the practical effect of eliminating the time factor in taking such appeals. Id., 607. Unlike Carbone, in this case, we see no reasons for a legal construction that would restrict the broad scope of the word “action” in the statute. “ ‘In a general sense the word “action” means the lawful demand of one’s right in a court of justice; and in this sense it may be said to include any proceeding in such a court for the purpose of obtaining such redress as the law provides.’ ” Dayco Corporation v. Fred T. Roberts & Co., 192 Conn. 497, 502, 472 A.2d 780 (1984), quoting Waterbury Blank Book Mfg. Co. v. Hurlburt, 73 Conn. 715, 717, 49 A. 198 (1901). The plaintiff’s suit obviously meets the Dayco definition of an “action.”

The defendants do not take issue with the legal precepts cited above. They do, however, vigorously claim that the first suit was not an action because without an administratrix to bring suit within the time limitation contained in the wrongful death statute, no timely action was commenced by the claimed administratrix. In other words, they claim that because the first suit never legally existed, there was no action that could be saved by § 52-592. This claim was firmly answered by Judge Cardozo in Gaines v. New York, 215 N.Y. 533, 540, 109 N.E. 594 (1915), where, in a case concerning the applicability of New York’s saving statute, the court stated the following: “The defendant argues that an action dismissed for want of jurisdiction is a nullity in the same sense as if it had never been begun at all. But that is an extreme view. Such an action has at least some of the consequences of an action begun in a court of competent jurisdiction.”

The defendants also stress the holding in Ecker v. West Hartford, 205 Conn. 219, 232, 530 A.2d 1056 (1987), where we stated that the time limitation in our wrongful death statute is a limitation on the liability itself and not of the remedy alone. The defendants’ arguments, however, prove nothing. These arguments overlook our clear ruling in Korb that the hardships sought to be remedied by the accidental failure of suit statute are the same whether the statute be one which concerns the remedy only, or the right as well as the remedy. Korb v. Bridgeport Gas Light Co., supra, 401. Furthermore, our statement in Ecker v. West Hartford, supra, that where a time limitation is contained in a statute creating a right of action that did not exist at common law, then the remedy exists only during the prescribed period and not thereafter, cannot be considered in isolation. That undoubtedly correct statement of the law was made in a case that did not involve § 52-592. The plaintiff’s claim to a valid resurrection of her case under § 52-592 is readily reconciled with this statement in Ecker if we add to the phrase that the cause of action exists “only during the prescribed period and not thereafter” the words “unless saved by the accidental failure of suit statute.” Although their propositions of law are, concededly, correct, the defendants are only restating the grounds on which the first suit was dismissed. These claims have validity only if the accidental failure of suit statute did not exist. We conclude that, contrary to the defendants’ claims, the plaintiff’s first suit was an “action” fitting precisely within the scope of the “actions” which § 55-292 was designed to save under the circumstances listed therein.

The defendants Mt. Sinai Hospital, St. Francis Hospital and Richard B. Weltman next claim that the trial court’s granting of the defendants’ motion to dismiss for want of subject matter jurisdiction was equivalent to a trial on the merits. The defendants have cited no authority in support of their claim. “In determining whether a court lacks subject matter jurisdiction, the inquiry usually does not extend to the merits of the case. GHK Exploration Co. v. Tenneco Oil Co., 857 F.2d 1388, 1392 (10th Cir. 1988); State v. S & R Sanitation Services, Inc., 202 Conn. 300, 301, 521 A.2d 1017 (1987); Rhodes v. Hartford, 201 Conn. 89, 92, 513 A.2d 124 (1986); Davis v. Board of Education, 3 Conn. App. 317, 320, 487 A.2d 1114 (1985).” Lampasona v. Jacobs, 209 Conn. 724, 728, 553 A.2d 175 (1989). In view of the defendants’ failure to cite any persuasive authority to the contrary, we decline further review of this claim.

The defendants Mt. Sinai Hospital, St. Francis Hospital and Richard B. Weltman also briefed the argument that § 52-592 is inapplicable because the plaintiff in the first suit is not the same plaintiff as in the subsequent suit. They claim that the person actually bringing the first suit was Deborah Isaac, individually, as opposed to Deborah Isaac, administratrix, who brought the second suit. It is difficult to conceive of a closer identity of interest than that found in this case. The defendants’ argument ignores the fact that the named plaintiff in each case was “Deborah Isaac, Administratrix.” The fact that Deborah Isaac in the first case was not, in fact, the administratrix of the estate of Redgnard Isaac does not destroy the identity of interest but merely paves the way for the plaintiffs invocation of § 52-592. “[A] change of parties does not preclude an application of [a saving] statute where the change is merely nominal or the interest represented in the renewed action is identical with that in the original action.” 51 Am. Jur. 2d, Limitations of Actions § 318. In light of the remedial purpose of § 52-592, we conclude that total identity of plaintiffs is not a prerequisite to application of the statute. We look, instead, to the essence of the plaintiffs status and the interest she represented. Deborah Isaac was the purported administratrix of Redgnard Isaac’s estate in the first instance and the actual administratrix in the second case. The cause of action and the claimed factual background, as well as all defendants, were identical in both instances. Accordingly, application of § 52-592 to this case is not precluded. In view of our disposition of the case, we do not reach the plaintiff’s alternative claim, pursuant to § 52-592, that the first action was defeated for a matter of form.

In Gaines v. New York, supra, 539, the original action had been brought to a court that lacked subject matter jurisdiction. In upholding the maintenance of the plaintiff’s subsequent suit under the savings statute Judge Cardozo said: “The [saving] statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.” Id. We, likewise, decline to “fritter away” the strong remedial purpose of our saving statute, § 52-592.

There is error, the judgment of dismissal is set aside and the case is remanded for further proceedings.

In this opinion the other justices concurred.

       General Statutes § 52-592 (a) provides in relevant part: “accidental failure of suit; allowance OF A NEW action, (a) If any action, commenced within the time limited by law, has failed one or more times to be tried on its merits because of insufficient-service or return of the writ due to unavoidable accident or the default or neglect of the officer to whom it was committed, or because the action has been dismissed for want of jurisdiction, or the action has been otherwise avoided or defeated by the death of a party or for any matter of form; or if, in any such action after a verdict for the plaintiff, the judgment has been set aside, or if a judgment of nonsuit has been rendered or a judgment for the plaintiff reversed, the plaintiff, or, if the plaintiff is dead and the action by law survives, his executor or administrator, may commence a new action ... for the same cause at any time within one year after the determination of the original action or after the reversal of the judgment.”

       “[General Statutes] Sec. 52-555. actions for injuries resulting in death. In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses, provided no action shall be brought to recover such damages and disbursements but within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the date of the act or omission complained of.”

       The plaintiff framed the issue as follows: “If Section 52-592 allows a second action for the same cause of action to be brought when a complaint has been served within the statute of limitations but is dismissed for lack of subject matter jurisdiction or any matter of form, and if this statute must be liberally construed in favor of the plaintiff, and if plaintiff, in her capacity as administratrix, caused a complaint to be served on defendants within the statute of limitations, and if plaintiff had not yet been formally appointed administratrix through mistake, and if plaintiff’s first action was dismissed because lack of a valid administratrix deprived the court of subject matter jurisdiction, and if plaintiff, after being appointed administratrix, filed a second action within one year for the same cause of action, should not the trial court have allowed plaintiff’s second action?”
      The defendant Anesthesia Associates, P.C., framed the issue as follows: “Whether or not the administrator of the estate of a decedent who is appointed more than three years after the death of the decedent can maintain an action for wrongful death under Conn. Gen. Stat. Sec. 52-555?”
      The defendants Mt. Sinai Hospital, St. Francis Hospital and Richard B. Weltman framed the issue as follows: “Whether the accidental failure of suit statute, General Statutes section 52-592, enables a wrongful death action to be brought when the administratrix was not appointed until after the right of action had expired, or when the plaintiff in the failed suit is not the same plaintiff as in the subsequent suit.”


author: Glass, J.

text:
    Associated Catalog Merchandisers, Inc. v. Pierre E. Chagnon et al.
    (13525)
    Peters, C. J., Healey, Shea, Glass and Hull, Js.

      Argued January 5
    decision released April 18, 1989

      F. Woodward Lewis, Jr., with whom, on the brief, was Robert J. Mead, for the appellants-appellees (defendants).

      Thomas H. Connell, for the appellee-appellant (plaintiff).
   Glass, J.

The paramount issue in this case is whether the trial court erred in determining that a writing purporting to be an “installment note” executed by the defendants, Pierre E. Chagnon and Marian G. Chagnon, actually represented a continuing guaranty rendering the defendants liable for debts arising from their business’s open credit account with the plaintiff. The defendants appealed to the Appellate Court from a judgment of $35,000 rendered in favor of the plaintiff, and the plaintiff cross appealed. We transferred the case to ourselves pursuant to Practice Book § 4023. We find no error with respect to the defendants’ appeal, or with respect to the plaintiff’s claim for interest on the cross appeal. We remand the case for further articulation on the plaintiff’s claim for attorney’s fees.

The facts may be summarized as follows. The plaintiff, Associated Catalog Merchandisers, Inc., supplied merchandise to the defendants’ wholesale business, Hanover Gift House (Hanover), on a “running account.” In 1975, after the defendants’ business encountered financial difficulties, the plaintiff proposed that the defendants sign a promissory note making them personally liable for Hanover’s debt. This note was never executed. At the plaintiff’s behest, however, on September 1, 1977, an instrument entitled “Installment Note” was executed by Pierre Chagnon as vice president of Hanover and by both defendants in their individual capacities. The note provided in relevant part: “For Value Received [Hanover Gift House] and/or Pierre Chagnon and/or Marion [sic] Chagnon promise to pay to the order of Associated Catalog Merchandisers, Inc. the sum of $35,000.00 (Thirty-five thousand) with interest thereon at the rate of Twelve per cent (12 %) per year, the principal and interest payable in installments as follows: October 1,1977 $1,000.00 plus accrued interest and $1,000.00 plus accrued interest every month thereafter. ... In the event of default hereunder the undersigned agree to pay all costs of collection including reasonable attorney’s fees.” There was no evidence that either party had legal assistance in the preparation or execution of the note.

The plaintiff continued to supply merchandise to Hanover for the next several years. During this period, the plaintiff applied all money received from the defendants to the open account balance. In September, 1978, the defendants sent the plaintiff a corporate check for $20,000 bearing a notation that the money should be applied to the installment note. Upon receipt of the check, however, the plaintiffs president, Richard C. Fredette, Jr., telephoned Pierre Chagnon and told him “you know better than that” and that the payment would not be applied to the note. Subsequently, Fredette directed his office manager to “white out” the notation, and credited the check to the open account balance. In December, 1980, the defendants’ corporate check for $15,000 similarly was applied to reduce the open account balance without being altered. Further, in December, 1985, two other checks totaling $20,000 and bearing the notation “without prejudice” also were applied to the open account.

In late 1986, Fredette discussed Hanover’s large outstanding balance with Pierre Chagnon. Chagnon told Fredette that “I don’t owe you anything personally and my company may not be able to pay you.” Thereafter, on November 19, 1986, the plaintiff’s application for an ex parte attachment on the defendants’ real property located in Meriden was granted. The plaintiff’s complaint dated November 24,1986, named Pierre and Marian Chagnon as defendants. In an amended complaint dated November 25, 1987, the plaintiff alleged that the installment note operated as the defendants’ personal guaranty on the debt arising from the open account. The plaintiff sought $54,943.86 in money damages representing the principal on the note plus interest accruing to September 30, 1987, and also sought reasonable attorney’s fees.

At trial, Fredette testified that the note was “security for past or future deliveries. . . . The consideration was the future deliveries which would be assured. . . . What I gave him [by his signing the instrument] was the ability to continue to receive merchandise . . . the note was intended to be used solely as a guaranty of payments if the company was unable to make payments.” Grita B. French, the plaintiff’s former office manager, testified that the “defendants’ company was very slow paying bills, and this was an attempt to guaranty personally the company’s bills. ... I whited out the check [of September, 1978,] after Mr. Fredette told Pierre Chagnon he wouldn’t apply it to the note. . . . Mr. Fredette called Pierre Chagnon two minutes after he received the check and said to him ‘you know better than that’ . . . the note was a guaranty.” Edward Symanksy, the plaintiff’s former employee and director, testified that “[o]n defendants’ account we thought we should get a guaranty . . . while I had frequent personal contact with defendants, I never heard them say they wanted to pay off the note.” In a deposition admitted at the trial, Pierre Chagnon testified that “[w]hat we bought [with the agreement] was the ability to keep buying.”

The trial court issued a memorandum of decision on January 22, 1988. Relying on the foregoing evidence, it concluded that the installment note was intended to represent a guaranty rendering the defendants personally liable for $35,000. The court rejected the defendants’ argument that the checks they earmarked toward satisfaction of the installment note extinguished their liability on the underlying corporate debt. It found that when the note was executed, the plaintiff was unwilling to extend the defendants further credit without assurances of their personal liability, and that the defendants in executing the note intended to induce the plaintiff to continue to supply them with merchandise on credit. The trial court rendered a judgment against the defendants for $35,000, but denied the plaintiff interest. The memorandum made no reference to the plaintiff’s claim for attorney’s fees.

On appeal, the defendants claim that the trial court erred by (1) relying on parol evidence to interpret the installment note as a continuing guaranty, (2) rejecting the defendants’ statute of limitations defense, and (3) finding the defendants personally liable without making any finding on the debt of the defendants’ corporation. The plaintiff on cross appeal asserts that the trial court erred in refusing to award it interest on the $35,000 principal and reasonable attorney’s fees incurred in bringing suit to enforce the defendants’ liability.

I

The defendants claim that the trial court erred in adverting to parol evidence in its interpretation of the installment note, and, therefore, improperly reached the conclusion that the note was a continuing guaranty. They argue that the parol evidence was not admissible under any of the exceptions to the rule set forth in Jay Realty, Inc. v. Ahearn Development Corporation, 189 Conn. 52, 56, 453 A.2d 771 (1983). They also argue that any continuing guaranty between the parties was “revoked” by the actions of Pierre Chagnon and, further, that the trial court erred in “reforming” the written agreement since the plaintiff did not seek reformation in its pleadings.

“ ‘Whether the written contract was actually the final repository of the oral agreements and dealings between the parties depends on their intention, evidence as to which is sought in the conduct and language of the parties and the surrounding circumstances. If the evidence leads to the conclusion that the parties intended the written contracts to contain the whole agreement, evidence of oral agreements is “excluded,” that is, excluded from consideration in the determination of the rights and obligations of the litigants, even though it is admitted on the issue of their intention. Cohn v. Dunn, 111 Conn. 342, 346, 149 A. 851 [1930].’ Shelton Yacht & Cabana Club, Inc. v. Suto, 150 Conn. 251, 254-55, 188 A.2d 493 (1963) . . . . ” (Citations omitted.) Damora v. Christ-Janer, 184 Conn. 109, 113-14, 441 A.2d 61 (1981). A written agreement is “integrated” and operates to exclude evidence of the “ ‘alleged extrinsic negotiation’ ” if the subject matter of the latter “ ‘is mentioned, covered or dealt with in the writing . . .; if it is not, then probably the writing was not intended to embody that element . . . .’’’Cohn v. Dunn, supra, 347; Shelton Yacht & Cabana Club, Inc. v. Suto, supra, 258; 2 Restatement (Second), Contracts § 215; 30 Am. Jur. 2d, Evidence § 1045. If the evidence, however, does not indicate that the writing is intended as an integration, i.e., “a final expression of one or more terms of an agreement”; 2 Restatement (Second), Contracts § 209 (1); then “the agreement is said to be ‘unintegrated,’ and the parol evidence rule does not apply.” E. Farnsworth, Contracts § 7.3., p. 452. Whether the parties intended to integrate their negotiations in a writing is a question of fact for the court. Jarvis v. Cunliffe, 140 Conn. 297, 299, 99 A.2d 126 (1953); 2 Restatement (Second), Contracts § 210 (3).

In the present case, the trial court’s consideration of evidence extrinsic to the installment note to determine whether that writing was an “integration” was entirely proper. Shelton Yacht & Cabana Club, Inc. v. Suto, supra; Cohn v. Dunn, supra. Moreover, the trial court’s conclusion that the parties had agreed to a contract of continuing guaranty necessarily was predicated on a determination that the installment note did not constitute an “integration” of the parties’ agreement. We are not persuaded that such a finding was clearly erroneous. Cf. Jarvis v. Cunliffe, supra.

The parties in this case conducted business pursuant to the open account arrangement for a number of years prior to the execution of the installment note. In the mid-1970s, the defendants’ business encountered financial difficulties, prompting the plaintiff to seek assurances that it would be paid for the merchandise it supplied on credit. In addition, the following factors are significant: the terms of the installment note did not purport to deal with the debt of the defendants’ business on the open account; Shelton Yacht & Cabana Club, Inc. v. Suto, supra; Cohn v. Dunn, supra; the note was brief and skeletal in nature; Gould v. Boston Excelsior Co., 91 Me. 214, 220, 39 A. 554 (1898); and contained no recital that it was intended to constitute the parties’ final agreement; 30 Am. Jur. 2d, Evidence § 1019; the parties did not seek legal advice in executing the instrument; Pierre Chagnon admitted that the purpose of the note was to enable Hanover to continue to buy merchandise from the plaintiff pursuant to their long established course of dealing; and the parties’ conduct subsequent to execution of the note forcefully demonstrates that they intended the installment note to represent the defendants’ continuing personal guaranty on the debt arising from the open account. See LarRob Bus Corporation v. Fairfield, 170 Conn. 397, 407-408, 365 A.2d 1086 (1976); Taft Realty Corporation v. Yorkhaven Enterprises, Inc., 146 Conn. 338, 343, 150 A.2d 597 (1959); Beach v. Beach, 141 Conn. 583, 591, 107 A.2d 629 (1954); Campbell v. Rockefeller, 134 Conn. 585, 590, 59 A.2d 524 (1948). Under these circumstances, evidence of the oral negotiations was admissible “in the determination of the rights and obligations of the litigants. . . . ” Shelton Yacht & Cabana Club, Inc. v. Suto, supra, 255.

The defendants’ argument that the parol evidence relied on by the trial court does not fit within any of the exceptions enumerated in Jay Realty, Inc. v. Ahearn Development Corporation, supra, is unavailing. In Jay Realty, Inc., we observed that “[p]arol evidence is admissible (1) to explain an ambiguity appearing in the instrument; (2) to prove a collateral oral agreement which does not vary the terms of the writing; (3) to add a missing term in a writing which indicates on its face that it does not set forth the complete agreement; or (4) to show mistake or fraud.” Id., 56. It is clear from our discussion above, however, that those “exceptions” only come into play once it is established that the writing in issue was intended as the “final repository” or “integration,” either partial or complete, of the parties’ negotiations.

We disagree with the defendants’ assertion that because a contract of continuing guaranty remains in force only until revoked by the guarantor, the defendants’ attempted payments on the note and Pierre Chagnon’s discussions with Fredette revoked the guaranty. A guaranty “contract is continuing if it contemplates a future course of dealing during an indefinite period or it is intended to cover a series of transactions or a succession of credits, or if its purpose is to give to the principal debtor a standing credit to be used by him from time to time. An offer for a continuing guaranty is ordinarily effective until revoked by the guarantor or extinguished by some rule of law.” Iola State Bank v. Biggs, 233 Kan. 450, 454, 662 P.2d 563 (1983); 38 Am. Jur. 2d, Guaranty § 63. To revoke a continuing guaranty, the guarantor usually must give notice of the revocation to the creditor. Gay v. Ward, 67 Conn. 147, 156, 34 A. 1025 (1895). However, “[e]ven a continuing guaranty that is, in terms, unlimited as to duration, imposes liability upon a guarantor only for such period of time as is reasonable in light of all the circumstances of the particular case.” Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, 183 Conn. 348, 351, 439 A.2d 362 (1981). The interpretation of a continuing guaranty, as well as the question of its revocation, ordinarily is a question of fact. Id.

In the present case, Fredette told Pierre Chagnon upon receipt of the corporate check for $20,000 in September, 1978, that the money could not be applied to reduce the defendants’ personal liability on the underlying debt. There is nothing in the record to indicate that the defendants expressed disagreement with Fredette’s position. After the parties’ discussion, the defendants’ company continued to acquire merchandise from the plaintiff pursuant to the open credit arrangement. In December, 1980, the defendants sent another check for $15,000 bearing the notation that it applied to the installment note. On the basis of all the evidence, including that of the parties’ discussion in 1978, however, the trial court could reasonably have found that the notation on the December, 1980 check did not effectuate a revocation. Id. The same holds true for the checks sent in 1985 bearing the notation “without prejudice.” Further, aside from the notations on the checks, the record does not disclose that the defendants expressly communicated a desire to revoke their guaranty until Pierre Chagnon told Fredette in late 1986 that the defendants did not consider themselves personally liable.

Finally, the defendants’ argument that the trial court improperly “reformed” the installment note because the plaintiff sought only money damages is misleading. In analyzing the facts, the trial court did not purport to “reform” the contract on the basis of mutual mistake or fraud. Cf. Lopinto v. Haines, 185 Conn. 527, 531, 441 A.2d 151 (1981). Relying on the language of the written agreement, the circumstances surrounding its execution, and the parties’ subsequent conduct, the trial court determined that the “ ‘installment note’ of September 1, 1977, was not a promissory note at all, but rather the product of an unprofessional yet honest effort on the part of the plaintiff to insure that it would be paid for materials furnished.” (Emphasis added.) As we observed above, this conclusion in essence indicated that the installment note was not an integration of the parties’ negotiations. Since the installment note was only the “product” of the underlying guaranty agreement, the trial court was not engaged in “reformation” when it analyzed the surrounding facts to determine precisely the content of the agreement. In light of this evidence, we are unpersuaded that the trial court committed error in determining that the defendants were guarantors on the underlying corporate debt. Monroe Ready Mix Concrete, Inc. v. Westcor Development Corporation, supra.

II

The defendants next claim that the trial court erred in rejecting their statute of limitations defense. They argue that under General Statutes § 42a-3-122 (l), the plaintiff’s cause of action on the installment note accrued on August 2, 1980, the day after the note matured according to its terms. They claim, therefore, that the plaintiff’s action was barred under General Statutes § 52-576 because it was brought in November, 1986, more than six years after its cause of action accrued.

The installment note, executed on September 1,1977, provided that the interest and principal were payable in monthly installments of $1000 plus accrued interest beginning on October 1, 1977. According to the defendants, the full term of the note expired on August 1,1980, the date the thirty-fifth and final payment was due. The defendants’ argument presupposes that the action was brought on the installment note and not on a continuing guaranty. The trial court’s findings, however, indicate that the payment terms of the note were not controlling. The trial court found that the plaintiff’s invoices did not adhere to the interest rate stated in the installment note, and further, that the parties’ conduct evinced an intent to ignore the payment schedule set forth in the note. That the defendants themselves did not adhere to those terms is clear from the acknowledgment in their brief that “[i]t is manifest from this payment scheme . . . that the agreement . . . contemplated termination of the guaranty and release of the Chagnons upon payment of the final $1,000.00 installment in May, 1981.” (Emphasis added.)

“In the case of a continuing guaranty, the statute [of limitations] does not commence to run in favor of a guarantor until there is a default in payment by the principal, and a cause of action has accrued against the former.” 38 Am. Jur. 2d, Guaranty § 121. In the present case, the defendants’ guaranty existed, absent an effective revocation, for “as long as the open account was in existence.” Boxed Beef Distributors, Inc. v. Rexton, Inc., 7 Conn. App. 555, 560, 509 A.2d 1060 (1986). Hanover’s account with the plaintiff was not in default until late. 1986, when Pierre Chagnon informed Fredette that “I don’t owe you anything personally and my company may not be able to pay you.” Consequently, the plaintiff’s action, brought in November, 1986, was not barred by the statute of limitations set forth in § 52-576.

Ill

The defendants next claim that the trial court erred in finding them liable for $35,000 on the underlying debt of their corporation without any finding on the corporation’s debt to the plaintiff. In its memorandum of decision, the trial court found that “[t]he agreement and the evidence lead conclusively to this court’s holding that defendants are liable to plaintiff for the sum of $35,000.” While the trial court’s memorandum does not make express findings with respect to Hanover’s debt, Hanover’s aggregate liability for at least $35,000 arguably is implied by the court’s conclusion as to the defendants’ liability. There was evidence before the trial court of Hanover’s liability in excess of $35,000. In any event, the defendants bore the burden of providing this court with an adequate record for appellate review. Practice Book § 4061. They have not sought an articulation of the trial court’s findings with respect to Hanover’s debt, or the basis for its failure to make any such finding. Practice Book § 4051. Because the defendants have failed to present us with an adequate record to support the factual underpinnings of their claim, we decline to review it. McLaughlin v. Bronson, 206 Conn. 267, 277-78, 537 A.2d 1004 (1988).

IV

The plaintiff on cross appeal argues that the trial court erred in (A) failing to establish a date on which the $35,000 guaranteed amount was due and then to award the plaintiff interest at the statutory rate until the principal was paid, and (B) failing to award reasonable attorney’s fees.

A

The plaintiff claims that the trial court should have determined that the defendants’ $35,000 debt to the plaintiff became “fixed” on November 18,1986, when the plaintiff initiated its action by filing an attachment on the defendants’ realty. The plaintiff concedes that the amount collectible on a guaranty is limited to the amount of the guaranty, but argues that once the amount falls due, failure to pay it results in the guarantor’s liability for interest on that amount from the date the amount falls due. It asserts, therefore, that beginning on November 18,1986, it became entitled to interest at the rate of 10 percent under General Statutes (Rev. to 1985) § 37-3a, yielding a total amount of damages of $39,113.12 as of the date the trial court filed its memorandum of decision, January 22, 1988.

Under § 37-3a, an allowance of prejudgment interest turns on “ ‘whether the detention of the money is or is not wrongful under the circumstances.’ Cecio Bros., Inc. v. Feldmann, 161 Conn. 265, 275, 287 A.2d 374 (1971).” Newington v. General Sanitation Service Co., 196 Conn. 81, 90, 491 A.2d 363 (1985). Such a fact-bound determination lies within the trial court’s discretion. Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 482, 542 A.2d 692 (1988); King v. Board of Education, 203 Conn. 324, 341, 524 A.2d 1131 (1987); Newington v. General Sanitation Service Co., supra; Bertozzi v. McCarthy, 164 Conn. 463, 467, 323 A.2d 553 (1973).

It is obvious from the memorandum of decision that the trial court did not address whether the plaintiff was entitled to interest under § 37-3a from the date the defendants’ liability became “fixed.” The court’s analysis was solely concerned with whether the plaintiff was entitled to interest accruing throughout the term of the guaranty agreement commencing in September, 1977. The court noted that “[i]t was the practice of plaintiff to charge the defendants interest on any outstanding balance not promptly paid,” but that the “rate of interest charged varied from less than 1 per cent per month to as high as V-k per cent per month.” It concluded that it was “impossible for this court to find that there was a meeting of the minds that defendants’ guaranty extended beyond $35,000.00 to the extent of interest on that amount at 12 per cent per year because that was the rate expressed in the ‘installment note.’ ” Thus, the memorandum of decision demonstrates that at trial the plaintiff sought interest at the rate of 12 percent, as set forth in the installment note, and not ten percent, based on the statutory rate of § 37-3a. Moreover, a simple comparison of the $54,943.86 sought in the complaint with the $39,113.12 asserted on the cross appeal demonstrates that the issue of interest pressed on appeal is not the same as that litigated at trial.

Nothing in the record indicates that the plaintiff distinctly raised at trial the issue now argued on appeal. Neither the defendants on appeal nor the plaintiff on cross appeal ordered transcripts of the proceedings below. Cf. Nair v. Thaw, 156 Conn. 445, 455, 242 A.2d 757 (1968). Further, the record does not indicate that the plaintiff sought an articulation of the trial court’s decision concerning interest on the judgment of $35,000. “We have repeatedly held that this court will not consider claimed errors on the part of the trial court unless it appears on the record that the question was distinctly raised at trial and was ruled upon and decided by the court adversely to the appellant’s claim. See Practice Book § 3063 [now § 4185] .... Moreover, it is an appellant’s burden, utilizing the rules of practice, to ensure that this court is provided with an adequate appellate record. Practice Book § 3082 [now § 4051] . . . . ” (Citations omitted.) Keating v. Glass Container Corporation, 197 Conn. 428, 431, 497 A.2d 763 (1985); Practice Book § 4061. Because an award of prejudgment interest under § 37-3a raises a question of fact which is not evident in the record before us, we decline to review the plaintiff’s claim for interest. Practice Book § 4185.

B

The plaintiff next claims on cross appeal that the trial court erred in failing to allow it reasonable attorney’s fees. The plaintiff argues that its right to attorney’s fees is expressly provided in the language of the installment note stating that “[i]n the event of default hereunder the undersigned agree to pay all costs of collection including reasonable attorney’s fees.” It further asserts that our review is not limited to the question whether the trial court’s failure to award attorney’s fees was clearly erroneous since the memorandum of decision does not at all purport to address the question of attorney’s fees.

The record demonstrates that the plaintiff’s claim for reasonable attorney’s fees was included in its prayer for relief set forth in the complaint. Thus, the claim for attorney’s fees was properly before the trial court. Because the trial court failed to address this claim, we remand the case to the trial court for an articulation of this issue. Practice Book § 4061.

The judgment is affirmed in all respects except on the issue of attorney’s fees, on which the case is remanded to the trial court for an articulation in accordance with this opinion.

In this opinion the other justices concurred.

       The parties in this case did not request transcripts of the proceedings below. Consequently, we must assume that the facts set out in the trial court’s memorandum of decision are supported by the evidence. Cf. Nair v. Thaw, 156 Conn. 445, 455, 242 A.2d 757 (1968).

       The defendants claim that the note is a negotiable instrument under article three of the Uniform Commerical Code; General Statutes § 42a-3-104; and that in signing the note they became an “accommodation party.” General Statutes § 42a-3-415 (1). Nevertheless, neither the defendants nor the plaintiff relies on any provision of the code relative to the admissibility of parol evidence. We agree with the parties that article three principles are inapplicable in this case. See EAC Credit Corporation v. King, 507 F.2d 1232, 1238 (5th Cir. 1975) (contract of continuing guaranty not governed by Uniform Commercial Code); Liberty Bank v. Shimokawa, 2 Haw. App. 280, 282, 632 P.2d 289 (1981), cert. denied, 454 U.S. 1146, 102 S. Ct. 1009, 71 L. Ed. 2d 299 (1982) (continuing guaranty is not transaction governed by code).

       In its memorandum of decision, the trial court also concluded that the contract of continuing guaranty was not subject to the statute of frauds under the “main purpose” or “leading object” exception. The plaintiff also presses this point on appeal. The defendants, however, have not argued the applicability of the statute of frauds on appeal. Consequently, that issue is not before us.

       General Statutes § 42a-3-122 (1) provides: “A cause of action against a maker or an acceptor accrues (a) in the case of a time instrument on the day after maturity; (b) in the case of a demand instrument upon its date or, if no date is stated, on the date of issue.”

       “[General Statutes] Sec. 52-576. ACTIONS FOR account or on simple or implied contracts, (a) No action for an account, or on any simple or implied contract, or on any contract in writing, shall be brought but within six years after the right of action accrues, except as provided in subsection (b) of this section.
      “(b) Any person legally incapable of bringing any such action at the accruing of the right of action may sue at any time within three years after becoming legally capable of bringing the action.
      “(c) The provisions of this section shall not apply to actions upon judgments of any court of the United States or of any court of any state within the United States, or to any cause of action governed by article 2 of title 42a.”

       We do not agree with the plaintiff’s argument that the applicable statute of limitations in this case is found in General Statutes § 42a-2-725, which establishes a four year limitation period on breach of contracts for the sale of goods. The contract at issue in this case is the continuing guaranty between the parties, and not the underlying open credit account by which the plaintiff sold goods to the defendants’ business. Cf. Carpenter v. Thompson, 66 Conn. 457, 461, 465, 34 A. 105 (1895) (holding that guaranty on promissory note is subject to predecessor to General Statutes § 52-576 pertaining to action on simple contracts); see also Chatham v. Georgia-Pacific Corporation, 163 Ga. App. 535, 536, 295 S.E.2d 226 (1982) (applying similar statute). Moreover, because the question has not been raised, we have no occasion to consider the applicability of General Statutes § 52-581 (establishing three year limitation period on oral contracts).

       “[Practice Book] Sec. 4061. (Formerly Sec. 3060D). review by the SUPREME COURT
      “The supreme court may reverse or modify the decision of the trial court if it determines that the factual findings are clearly erroneous in view of the evidence and pleadings in the whole record, or that the decision is otherwise erroneous in law.
      “If the supreme court deems it necessary to the proper disposition of the cause, it may remand the case for a further articulation of the basis of the trial court’s factual findings or decision.
      “It is the responsibility of the appellant to provide an adequate record for review.”

       Practice Book § 4051 provides in relevant part: “Any motion seeking corrections in the transcript or the trial court record which depend on proof of matters not of record or seeking an articulation or further articulation of the decision of the trial court shall be determined by the judge of the trial court whence the appeal is taken or the reservation is made. The trial court may make such corrections or additions as are necessary for the proper presentation of the preliminary statement of issues or for the proper presentation of questions reserved; or the trial court may approve a stipulation of counsel that such a correction or addition be made, provided the motion or stipulation is presented before the appeal is ready to be assigned for hearing and only by leave of the supreme court thereafter.”

       “[General Statutes (Rev. to 1985)] Sec. 37-3a. rate recoverable as damages. Except as provided in sections 37-3b and 52-192a, interest at the rate of ten per cent a year, and no more, may be recovered and allowed in civil actions or arbitration proceedings under chapter 909, including actions to recover money loaned at a greater rate, as damages for the detention of money after it becomes payable except as otherwise provided with respect to demand obligations in section 42a-3-122 (4) (a). Judgment may be given for the recovery of taxes assessed and paid upon the loan, and the insurance upon the estate mortgaged to secure the loan, whenever the borrower has agreed in writing to pay such taxes or insurance or both. Whenever the maker of any contract is a resident of another state or the mortgage security is located in another state, any obligee or holder of such contract, residing in this state, may lawfully recover any agreed rate of interest or damages on such contract until it is fully performed, not exceeding the legal rate of interest in the state where such contract purports to have been made or such mortgage security is located.”