author: Hawley, for the defendants, Church, Ch. J.

text:
    Johnson against Smith and others.

      Fairfield,

    June, 1852.
    A note signed by the authorized agents of a corporation, with words annexed to their names intimating their agency, is the note of the corporation, and not of the persons signing it.
    Therefore, where P, an ecclesiastical society, passed votes, empowering the wardens and vestry to transact all its necessary business, as a committee, and then directed that committee to raise 500 dollars for the builder of the new church; at this time, there were, in such society, two wardens and four vestry-men; three of the vestry-men borrowed of the plaintiff a part of the 500 dollars, for which they gave him their promissory note, signed by them, with this addition, “vestry-men of P church;” the money so borrowed was applied to the use of the society, and the interest thereon was annually paid by its treasurer, and charged to and allowed by the society; in an action on such note, it was held, that this instrument was the note of the society, and not of the individuals who signed it; consequently, such individuals were not liable.
    Though a person duly authorized as agent, and acting as such, may bind himself personally; yet this must be done, by language clearly expressive of such an intent.
    So also, a person signing as agent, may bind himself, if he had no authority to bind, and has not bound, his principal.
    In case of a defective power to bind the principal, if the agent speaks only in the language of the principal, and does not use apt language to bind himself, he will not be liable on the contract, but may be subjected for a false assumption of authority.
    Where a power of a mere private nature is conferred on two or more persons, all must concur in the act, and if of a public or more general nature, a majority, at least, must act, in order to bind the body conferring the power; yet if such body make no objection to the act done, but adopt and sanction it, a third person cannot avail himself of a defective execution; a subsequent ratification having the same effect as an original authority.
    This was an action on two promissory notes, one for 54 dollars, 50 cents, dated the 20th of June, 1838, and the other for 230 dollars, dated the 11th of July, 1838. The defendants pleaded the general issue; on which the cause was tried, at Fairfield, February term, 1852.
    On the trial, the making of the notes declared on, at the times they respectively bear date, was admitted. It also appeared, that to the signatures of the defendants were annexed the words, “Vestry-men of the Episcopal Society.”
    The defendants gave in evidence a writ of scire-facias in favour of David Burr and others against St. Paul’s Church, with the proceedings had thereon.
    The defendants also offered evidence to prove, and the court found, that there was, and for a long time before the notes in question were executed, had been an Episcopal society in the town of Brookfield, which was a corporate body, duly incorporated, by the name of St. Paul's Church.

    That on and before the 16th day of April, 1838, said society had elected, and there were then, four vestry-men and two wardens, according to the usage of the protestant Episcopal church in the United States.

    That on said 16th day of April, 1838, said society passed the following vote, authorizing the wardens and vestry, to raise money, for the use of said society, and to act as a committee for said society, viz. “At a meeting of the members of the Episcopal society, held at St. Paul's Church, Brookfield, April 16th, 1838, the following votes were passed:
    “Voted, that the wardens and vestry be empowered to transact all necessary business for the society, as a committee.

      Voted, that the committee be directed to raise 500 dollars for Mr. Osborne, the builder of the new church.”
    That the defendants, by virtue of said vote of said society of St. Paul’s Church, borrowed of the plaintiff, the several sums of money specified in said notes, for the use and benefit of said society, to enable them to build a church edifice for said society; at which time, the plaintiff was a member of said society, and knew the purpose and object of the defendants in borrowing said several sums of money.
    That the latter part of the year 1839, said notes were duly, and for full and valuable consideration, sold and assigned, by the plaintiff, to Edwin A. Lacy, the absconding debtor, named in said scire-facias.

    That said Lacy was the holder of said notes from the time when they were assigned to him, until after and when the aforesaid suit in favour of said David Burr et al., against him, the said Lacy, was commenced, and by which said Episcopal society of St. Paul’s Church was served with notice to appear and disclose, as in said writ of scire-facias is averred, and when said process or notice was thus served upon said society.
    That while said Lacy was the holder and assignee of said notes, the interest upon them was annually paid upon them to said Lacy, by the treasurer of said society of St. Paul’s Church, from the funds of said society, and was, by said treasurer, annually charged to said society; and said payments, thus made and charged, were annually submitted to said society, by said treasurer, and annually approved, by the votes of said society; and that the defendants never paid, nor were, at any time, required to pay, the interest or principal of said notes, nor any part thereof.
    That the money so borrowed or raised by the defendants of the plaintiff, was part of the said sum of 500 dollars, which said wardens and vestry-men of said society were, by said vote of said society, authorized and empowered to raise, as aforesaid, and was duly applied to the building of a church edifice for said society.
    To all the evidence thus offered by the defendants, and received by the court, the plaintiff objected.
    Upon these facts, the case was reserved for the opinion and advice of this court, as to what judgment should be rendered thereon.

      Dutton and Bristol, for the plaintiff,
    in support of the general proposition, that the defendants were liable personally, on these notes, contended, 1. That where a power is conferred upon two or more, for a public purpose, the power is joint and several, and a majority of the persons authorized may do the act; but where the the power is granted for a private purpose, the act done by the agents, is not binding upon the principal, unless all concur in doing the act; for the authority is construed strictly, and the power is understood to be joint and not several. The King v. Beeston, 3 Term R. 592. Withnell v. Gartham, 6 Term R. 388. 398. Patterson v. Leavitt, 4 Conn. R. 50. Bull v. Bull, 3 Day, 384. Inhabitants of Sutton v. Cole, 3 Pick. 232. Damon v. Granby, 2 Pick. 345. Green v. Miller, 6 Johns. R. 39. Story on Agency, § 42. A note signed by one of the select-men, is not the note of the town. Andover v. Grafton, 7 N. Hamp. 598. If a power be given to two or more persons to give or receive livery, both must concur in the act, or the livery is void. Co. Litt. 49. Com. Dig. tit. Attorney, C. 11.
    2. That in this case, the power is given for a private pur

      pose. Such an ecclesiastical society is a private corporation. Jewett v. Thames Bank, 16 Conn. R. 516. 1 Greenl. Ev. § 331, 332. Angell & Ames on Corp. 16. But the power, although granted in this case, for a private purpose, was not executed even by a majority of the wardens and vestry. The execution of it, therefore, by less than a majority, was clearly bad, upon every principle.
    3. That if the defendants have executed the notes in question, without an authority from the society, then they are personally responsible, the words of the notes being apt to charge themselves. Smout v. Illberry, 10 Mess, & W. 9. Sumner v. Williams, 8 Mass. R. 178. Dusenbury v. Ellis, 3 Johns. Ca. 70. Meech v. Smith, 7 Wend. 315.
    4. That if these defendants had an authority from the society to execute the notes, that authority has not been executed in such a manner, as to bind the society, but only the defendants personally. The words are “we promise;" the addition “vestry-men of the Episcopal society,” are merely descriptio personarum. Packard v. Nye, 2 Metc. 47. Bradlee v. Boston Glass Co., 16 Pick. 34. Simons v. Heard, 23 Pick. 121. Nimrod v. Mead, 7 Wend. 68. Barker v. Mechanics’ Ins. Co., 3 Wend. 94. Moss v. Livingston, 4 Comst. 208. Hills v. Bannister, 8 Cowen, 31. Downham v. Jones, 9 Jurist, 454-458. Leadbitter v. Farrow, 5 Maule & S. 345. Burwell v. Jones, 3 B. & Ald. 47. (5 E. C. L. 223.)
    The personal liability of the party, in cases like the present, does not depend on the question whether he was in fact an agent, nor whether that fact was known to the party with whom the contract was made, but upon the terms of the written instrument. See Simonds v. Heard, 23 Pick. 121, 126., and most of the authorities above cited.
    5. That parol evidence is inadmissible to show, that the contract was the contract of the principal, and not of the agent, when the agent, upon the face of the contract, binds himself. See again, Simonds v. Heard, 23 Pick. 125. Stackpole v. Arnold, 11 Mass. R. 27.
    6. That where the credit is given to the agent, or a promissory note of one known to be an agent, is taken, the principal is not liable, either for the debt or on the note. Beebe v. Robert, 12 Wend. 413-417. Paterson v. Gandasequi, 15
      East, 62. French v. Price, 24 Pick. 13. Green v. Turner, 8 Metc. 411.
    7. That the process by foreign attachment, in this case, against the Episcopal society, does not affect the plaintiff’s right to recover on the notes in suit.
   Hawley, for the defendants,

contended, 1. That the notes bound the society; the power to raise money authorizing the raising of it, in the ordinary manner, as it was raised here.

There was no necessity for the concurrence of all, nor even of a majority of the committee in giving the notes. The specific thing to be done was authorized and directed. It was a mere ministerial act; there was no judgment nor discretion to be exercised, as to whether it should be done or not, nor otherwise, in relation to it. It was an act that could as well and as effectually, for all the purposes of the society, be done by one as by many. In ascertaining the nature of a power, we look at the intent of the person who confers it; and in ascertaining that intent, regard the character and nature of the act to be done. A power to seven, or any of them, would undoubtedly authorize three to do the act. And here, the nature of the act to be done, the character of the committee, and the nature of their office, shew, that such was the power conferred by the vote. The power of officers of a municipal corporation is joint and several; and where no judgment or discretion is to be exercised, any one may act. A purchases Black-Acre of B, for 1,000 dollars. He is to pay the money at a given time and place, and then receive the deed and place it on record. He empowers three to do these acts for him; one only of the three, at the time and place, pays the money, takes the deed, and puts it on record. Is not the payment effectually made, and a title acquired by the deed?

2. That the note is, inform, sufficient to bind the society. Hovey v. Magill, 2 Conn. R. 282. Magill v. Hinsdale, 6 Conn. R. 465. The addition of “vestry-men,” &c., imports that they act in behalf, not of themselves, but of the society. And the place of the date of the note, and the fact that there is an Episcopal society in Brookfield, (and only one,) shews, that that society was intended. Besides, the parol testimony puts all doubt, on this point, at rest.

3. That the parol testimony was admissible. It was not offered to vary any stipulation of the note, but to prove a fact—the fact of the plaintiff’s knowledge of the character in which the defendants acted. The plaintiff having that knowledge, cannot look to the defendants for payment. And even if the form of the contract were such, that without such knowledge, the agents might be bound, yet on showing such knowledge, they are not bound; especially, if the form of the contract be such that the principal may be bound, consistently with its tenor. Hovey v. Magill, 2 Conn. R. 680. Wilson v. Hart, 7 Taun. 295. Garrett & al. v. Handley, 4 B. & Cres. 664. (10 E. C. L. 438.) Bateman v. Phillips, 15 East, 272. Angell on Corp. 283. & seq. Mott v. Hicks, 1 Cowen, 513. 532, 3, 4, 5, 6.

4. That the process of foreign attachment, shown in this case, furnishes no defence to the Episcopal society, in the present suit.

Church, Ch. J.

It is obvious, that only one debt became due to this plaintiff, by reason of his loan of money, as set forth in this record. This being true, the only question is, who owes it—the society, the corporation of St. Paul’s Church, or these defendants? We answer, the former.

The money was raised, by direction of the society, for its sole use; it has received and used it, and, by its treasurer, has, from the beginning, annually paid the interest upon it, to this plaintiff and Lacy his assignee, the holders of these notes, who have recognized the society, and no one else, as their debtors. Nor has claim been made upon these defendants, until since the process of garnishment has been served upon St. Paul’s Parish, for the debt of Lacy. The society received the money directly from the plaintiff, through the avowed and recognized agency of these defendants as its officers; they were not middle men, borrowing from the plaintiff, and lending to the society.

We do not think that these defendants were ever liable upon these notes: they are the notes of the society.

The defendants signed the notes as vestrymen of the Episcopal society, which society the superior court has found was identical with the society of St. Paul’s Church, and not for themselves. The word “ vestry-men,” ex vi termini, imports agency, and is of the same significancy as the word agents, committee, &c. And the defendants were in fact vestrymen of said society, and, with others, specially constituted a committee, and empowered to raise these funds.

That a note thus signed, by authorized agents of a corporation, is the note of the corporation, and not of the agents executing it, was very deliberately decided, by the courts of this state, long ago, in the cases of Shelton v. Darling, 2 Conn. R. 435. and Hovey v. Magill, Id. 680; and the same principle, recognized and settled in those cases, has been followed here ever since. Magill v. Hinsdale, 6 Conn. R. 465. Ferris v. The Stamford Bank, 17 Conn. R. 259.

Judge Swift, in expressing the opinion of the court, in the case of Hovey v. Magill, says: “It will be agreed that no precise form of words is required to be used in the signature; that every word must have an effect, if possible; and that the intention must be collected from the whole instrument, taken together:" and again: "I can see no good reason for the addition of agent, but to render the note obligatory on the company, and exclude all idea of individual liability. This is the plain language of the transaction, and we ought to give it the obvious meaning, and not entrap men, by the mere form of words.”

We need not look abroad for a doctrine more common sense like, or more consistent with obvious intention, on this subject, than is expressed by the court, in the case referred to, if indeed a different doctrine has been intentionally recognized elsewhere. And unless we are disposed to yield to the authority of technicality, in opposition to good sense and substantial equity, we shall adhere to what we suppose is the authority of our own law on this subject.

No one, as we think, can doubt, when reading this note, that the purpose of the defendants was, to give a society note, and that the plaintiff supposed he was receiving such a one, and was giving exclusive credit to the society, for money loaned to it; he was a member of the society himself; and whether the defendants, or either of them, were persons to whom he would give credit personally, we do not know.

There is some apparent confusion in the decided cases, out of this state, on this subject; but we are satisfied, upon a view of them all, that the doctrine of our law is the doctrine of most of them. Story on Agency, § 154. 155. 263. Angell & Ames on Corporations, 170. 2 Kent's Com. in loc. Rathbon v. Budlong, 15 Johns. R. 1.

This confusion has arisen, perhaps, in some measure, from not always distinguishing between the execution by agents of sealed instruments, as deeds of conveyance, covenants, &c., in which greater precision of form has been required, and simple and mercantile contracts; and also between cases of corporations and mere voluntary associations, acting by agents. Story on Agency, § 154.

That an agent may bind himself personally, even when acting really or professedly as agent, is not denied; and in the execution of a simple contract, as well as a specialty; and this will be so, in all cases, where, by language clearly expressive of such an intent, he has substituted his own responsibility for that of his principal. So also, if in language of personal obligation in the body of the contract, although he may sign as agent, he will bind himself, if he had no authority to bind, and has not bound, his principal, by his act; as the plaintiff hereafter insists, in the present case. But in case of a defective power to bind the principal, if the agent speaks only in the language of the principal, and does not use apt language to bind himself, he will not be liable on the contract thus made, but collaterally only, for a false assumption of authority to act for another. Jones v. Downman, 4 Adol. Ell. N. S. 234. n. (45 E. C. L. 234.) But in the present case, the form of the notes and the circumstances under which they were executed, show no intent, on the part of the defendants, to assume an individual obligation.

The strong ground of claim, by the plaintiff, here, is, that if, by the form of the notes and manner of execution, the defendants were not made personally responsible, they became so, because by the manner in which their agency was executed, they imposed no obligation upon the corporation to pay them. This claim is predicated upon the fact, that the society, by its vote, appointed its wardens and vestry, consisting of six persons, to raise the money for which these notes were given, and the notes were signed only by three of them.

We admit the principle, that, where a power of mere private confidence is entrusted to a number of persons, all must concur; and if of a public or more general nature, a majority, at least, must act, in order to bind the body conferring the power. And although, in the present case, a majority of the wardens and vestry did not sign this note, yet who is it that objects? Not the corporation, which alone is affected by the act, but a third person. The society, whose officers de facto the defendants were, has never objected to or repudiated their act, and never can. If the signing of these notes was not its act originally, it has adopted and sanctioned it, so as to be itself estopped. It could not, as we think, ever have objected to the original act of signing or executing those notes. The defendants were their officers and agents, and authorized to do just what they have done; and the avails of their agency were for the immediate benefit of the society, and for which they were then legally liable. All was right, except that one or more of the committee, neglected to join in the act of executing the notes.

But if a subsequent ratification was necessary to create a binding obligation upon the society, it has been most effectually done, by receiving and using the money, and by an annual payment of the interest upon these notes, and entering them upon its book, as its own debts. “A ratification,” says Judge Story, “when fairly made, will have the same effect as an original authority, to bind the principal, not only in regard to the agent himself, but in regard to third persons.” In short, it is treated throughout as if the act were originally authorized, for the ratification relates back to the time of the inception of the transaction, and has a complete retroactive efficacy: Omnis ratihabitio retrotrahitur. Story on Agency, § 244. Broom's Maxims, 381. Addison on Contracts, 397.

And so it has been holden, if a person, without previous authority, sign a memorandum required to be in writing by the statute of frauds, a subsequent adoption or assent, by the principal, will take the case out of the statute, as effectually as if the agent had authority at the time of signing. McLean v. Dunn, 4 Bing, 722. (15 E. C. L. 129.) The case of Saunderson v. Griffiths, 5 B. Cres. 909. (12 E. C. L. 404.) on the first reading, might appear to be an exception to the almost universal doctrine of the law on this subject; but it involved really only a question of variance, and a nice discrimination in a matter of pleading. And some other cases are to be found forming apparent exceptions, in which the discrimination “is one of considerable nicety, and stands upon reasoning not very satisfactory or clear.” Story on Agency, § 246. and notes.

It will be recollected, that the vote of the society authorizing the wardens and vestry to act, was not imperative as to the time or manner of their action: it was only that ‘‘they be directed to raise 500 dollars for Mr. Osborne, the builder of the new church,” leaving the manner of doing this entirely at the discretion of that board. There was no direction that the committee or board should execute any bond, note or other specific form of security, or if given, that it should be executed under the hands of the whole, or a part of the committee. That board was to devise the means, and direct as to the manner of raising the specified funds; and if, by its direction or approval, these defendants alone signed the notes for the money for which a majority had negotiated, why would not this be a reasonable and legal execution of the power conferred by the society? Such a mode of proceeding, we believe, is not uncommon. One or more select-men of a town, less than a majority, often execute the powers conferred by the law or the towns upon the board of select-men, and especially, when no objection is interposed, by the other select-men or the town; and this upon the presumption of an assent, by the whole, or a majority of the select-men. May we not fairly presume such to have been true, in the present case, as to the mere manner of executing the notes in question?

These suggestions are made in view of the doctrines recognized by the supreme court of the United States, in the case of Fleckner v. Bank of United States, 8 Wheat. 338. The plaintiff in that case claimed title to the note in suit, by virtue of an indorsement of it, by the cashier of the Planters’ Bank. The defendant insisted, that the cashier had no authority to make the transfer. The facts were, that the board of directors of the Planters’ Bank, on the 21st day of October, 1819, passed a resolution, “ that the president and cashier be authorized to adopt the most effectual measures to liquidate, the soonest possible, the balance due to the office of discount and deposite in the city of New-Orleans,” &c. To effect this object, the cashier indorsed the note in question; and on the 27th day of June, 1820, the directors of the Planters’ Bank ratified this act of the cashier. The objection was made by the defendant, on the ground that the cashier alone had acted, without the president of the bank. On this point, the court says: “ The resolution was merely directory to the president and cashier, and leaves them to decide as to the time, the mode and the means. They might, therefore, agree, that the cashier should indorse the note in question, &c. The presumption that this was an exercise of authority, sanctioned by the president, as well as contemplated by the directors, is almost irresistibly proved, by the fact that the Planters’ Bank has never complained, but has ratified and approved the whole transaction.” The court goes on to say, that the resolution of June 27th, 1820, was conclusive and binding on the bank; and if so, it was binding upon all other persons who have not an adverse interest. No maxim, say the court, is better settled in reason and law, than the maxim, Omnis ratihabitio retrotrahitur; at all events, where it does not prejudice the rights of strangers. P. 363. We believe that the reasonable doctrines of this case, in this respect, are quite applicable to the case before us. And if so, as well as upon the other views expressed by us, a majority of us are of opinion, that this action against these defendants, cannot be sustained.

We have not thought it to be necessary, therefore, to consider any questions which may be supposed to arise from the garnishee process, set out in this record.

In this opinion the other judges concurred, except Hinman, J., who dissented.

Judgment for defendants.


source: Caselaw Access Project

author: Hull, J.

license: Public Domain

text:
    Crossroads Development, Inc. v. Planning and Zoning Commission of the Town of Thomaston et al.
    (13471)
    Peters, C. J., Healey, Shea, Covello and Hull, Js.
    Argued November 4, 1988
    decision released February 7, 1989

      Lawrence R. Pellett, for the appellant (plaintiff).

      E. Seward Stevens, with whom, on the brief, were Michael D. Rybak and R. Christopher Blake, for the appellees (defendants).
   Hull, J.

The facts are not in dispute. The original appeal bond was signed for Crossroads Development, Inc., by George Touponse, its vice president as principal, and by George Touponse as surety. The words “Crossroads Development, Inc.,” are typed. Below this is the typed word “By” followed by “George Touponse” written over a line, under which is written “Its Vice President Principal.” George Touponse’s signature appears over a second line with his name typed under it, with the written word “Surety” to the right of the typed name. The original summons is signed as follows:

“THE PLAINTIFF
BY [Signature of Robert L. Chase!
Robert L. Chase, for
Feeley, Nichols, Chase & McDermott, P.C.
Its Attorneys”

The original complaint is signed as follows:

“THE PLAINTIFF
BY [Signature of Robert L. Chase!
Robert L. Chase
Its Attorney”

None of the copies of the appeal bond, summons and complaint served on the commission and the town was signed by the plaintiff or its attorney, nor did any of them contain any of the handwritten notations described on the original documents above.

The copies served on the defendants bore the following notation: “A True Copy Attest 2/2/1988 Eugene F. Torrence Deputy Sheriff Litchfield County.” The sheriffs return also stated that a “true and attested copy” of the original pleadings was served on each defendant. Thus, the copies served on the defendants were not duplicate copies of the original documents filed in court. The defendants moved to dismiss the appeal because of (1) lack of subject matter jurisdiction pursuant to Practice Book § 145, and (2) insufficiency of process pursuant to Practice Book § 143. The Superior Court granted the motion to dismiss by memorandum of decision dated April 20, 1988. The court concluded that since the pleadings served upon the defendants failed to conform to the original pleadings, they were not “true and attested copies.” It held that the failure to serve the defendants with true and attested copies of the original pleadings, as required by General Statutes § 8-28, constituted insufficient process. The Appellate Court granted the plaintiff certification to appeal from the court’s judgment, and the case was then transferred to this court pursuant to Practice Book § 4023.

The plaintiff has raised the single issue of whether the court erred in granting the defendants’ motion to dismiss because the original pleadings were signed and the copies served on the defendants were unsigned. The defendants agree with the plaintiffs statement of the issue, but add a second issue as to whether the trial court should have granted the defendants’ motion to dismiss for lack of subject matter jurisdiction rather than insufficiency of process. The defendants did not file a preliminary statement of issues presenting for review alternate grounds upon which the judgment may be affirmed pursuant to Practice Book § 4013 (a) (1), nor did they identify this claim in their brief as such a claim. We need not, however, consider the absence of a § 4013 (a) (1) statement by the defendants since we conclude that the subject matter jurisdiction claim stands or falls with the issue of insufficiency of process on which it is based. We therefore confine our consideration to this single narrow issue.

Lorch v. Page, 97 Conn. 66, 115 A. 681 (1921), is dis-positive of this case. Lorch involved a writ of error to reverse a judgment of a justice of the peace in an action of summary process in favor of the landlord. The trial court reversed the judgment of the justice of the peace and the landlord appealed from this judgment of reversal. The defendant tenants claimed that the only notice left with them was a document which by the sheriff’s return thereon purported to be a “true and attested copy of the original notice,” but was not a duplicate of the original notice. Id., 67. In upholding the trial court’s judgment, we made a detailed historical analysis of the statutes concerning notice to quit in summary process actions. We stated that “ ‘[duplicate’ as applied to any form of written instrument, has a determined and unvarying meaning. Burrill’s definition has been frequently approved and quoted by the courts of this country. ‘That which is double, or twice made; an original instrument repeated. A document which is the same as another, in all essential particulars. . . . Sometimes defined to be the copy of a thing; but, though generally a copy, a duplicate differs from a mere copy, in having all the validity of an original.’ 1 Burrill’s Law Dictionary (Ed. 1859) p. 526. Bouvier’s Law Dictionary (Vol. 1, Rawle’s 3d Rev.) p. 958, defines it as: ‘The double of anything. A document which is essentially the same as some other instrument. . . . ’ ” (Emphasis in original.) Id., 69-70. We noted further that “a copy can never be a duplicate copy. Nor can a ‘true copy’ or a ‘certified copy’ be a duplicate copy.” Id., 71. Finally, we said: “These authorities conclusively determine that when our statute says ‘duplicate copies of such notice,’ it means two copies, the original notice and a copy which repeated the original notice and had the validity of the original. They likewise determine that no mere copy and no true or certified copy can be a duplicate copy.” (Emphasis added.) Id., 72.

Lorch leads to the inescapable conclusion that under our practice a “true and attested copy” of an original court document does not have to be a duplicate copy, i.e., a copy exact in every respect to the original. The extent to which any nonconformity of a copy, compared to the original, shall be deemed inadequate service, where a claim of prejudice to the defendant is made, is not before us. Accordingly, we conclude that the service of process was adequate in this case.

Strong support for this conclusion is found in actual practice in Connecticut. We take judicial notice of the fact that copies of summonses and complaints served in civil actions in Connecticut invariably have not been signed duplicates of the originals. At most, they have contained an “S/” over the line below which the name of the person involved is typed, or an “S/” followed by the typed name of that person over the line below which the typed name is also contained. We also note that Practice Book § 121 (a) states that “[i]t is the responsibility of counsel filing the same to serve on each other party who has appeared one copy of every pleading subsequent to the original complaint . . . . ” We again take judicial notice that copies of pleadings served on opposing counsel do not ordinarily contain signatures of the attorney serving such papers. The “practical construction placed upon ‘duplicate copies’ for over one hundred years, is high, almost conclusive, evidence that their meaning conforms and should conform to that adopted by the practice. It shows a ‘practical construction’ put upon the law, which is to be regarded as ‘high evidence of what the law is.’ State ex rel. Mathewson v. Dow, 78 Conn. 53, 56, 60 Atl. 1063 [1905]; Huntington v. Birch, 12 Conn. 142, 149 [1837].” Lorch v. Page, supra, 75.

There is error, the judgment dismissing the appeal is set aside and the case is remanded for further proceedings.

In this opinion the other justices concurred.


text:
    Highgate Condominium Association v. Watertown Fire District et al.
    (13484)
    Peters, C. J., Healey, Covello, Hull and Santaniello, Js.

      Argued November 3, 1988
    decision released February 7, 1989

      Frederick W. Krug, with whom was Richard A. Danen, for the appellant (plaintiff).

      Daniel E. Casagrande, with whom was John H. Cassidy, Jr., for the appellees (defendants).
   Hull, J.

This case concerns the validity of sewer service charges contractually imposed by a quasi-municipal fire district upon persons residing outside of the fire district’s territorial limits. The plaintiff, Highgate Condominium Association, is the duly authorized representative of the residents of a condominium complex located within the town of Watertown, but outside the limits of the defendant Watertown Fire District (fire district). The plaintiff brought an action in the Superior Court seeking a judgment declaring that the annual sewer service charges imposed upon it by the fire district for the years 1982 through 1986 for the plaintiffs use of the fire district’s sewage treatment facilities were excessive and illegal, and claiming injunctive relief and damages. After a trial to the court, judgment was rendered in favor of the defendants. The plaintiff has appealed. We find no error.

According to the stipulated facts, the fire district, a quasi-municipal corporation located within the town of Watertown, was created by a Special Act in 1913 that authorized it to construct sewers and to maintain and repair a complete system of sewage and drainage within its territorial limits. 16 Spec. Laws 863, No. 212, § 3 (1913). In addition to sewer service, the fire district provides for street lighting and for the installation and maintenance of water hydrants within its water system. The fire district is governed by a three member elected body called the Fire District Committee. In order to pay for the services it provides, the fire district imposes a tax upon property owners within its boundaries. The amount of the tax is determined by multiplying the assessed value of the various properties by a mill rate that is fixed annually by the Fire District Committee. The fire district has utilized this assessed value or “ad valorem” method of taxation to charge for the cost of its services since its inception in 1913. By Special Act in 1941, the fire district was authorized by the legislature to extend sewer service to parties residing outside of its territorial limits, but within the town of Watertown, “upon such terms and conditions as the fire district committee acting with respect to sewers . . . may determine to be fair and proper.” 23 Spec. Laws 839, No. 218, § 2 (1941).

In 1964, two real estate developers, John A. Errichetti and Armand M. Errichetti, were in the process of constructing several apartment houses on a fifty acre parcel of land they owned in the town of Watertown. The construction site was located approximately one quarter mile outside of the limits of the fire district. Access to an adequate sewer system was necessary before the apartment houses could be occupied. Thus, in November, 1964, the Errichettis entered into a series of agreements (Errichetti agreements) with the nearby fire district calling for, inter alia, the connection of the apartment houses to the fire district’s sewer system. The fire district was authorized to enter into this “outside party” agreement pursuant to the powers extended to it by the legislature in the 1941 Special Act. In exchange for the connection to and use of the fire district’s sewer system, the Errichetti agreements provided that the owners of the apartment houses would be obligated to make annual payments to the fire district in an amount equal to what they would have been required to pay in taxes to the fire district if the land and apartment houses were located within the fire district, plus 50 percent. The terms and conditions of the Errichetti agreements, including this formula for determining sewer service charges, were expressly made binding upon all successors in interest to the property.

On or about August 4, 1981, the property was conveyed to Highgate Enterprises, Inc. (Highgate), a Connecticut corporation. Highgate immediately converted the apartments into the condominium form of ownership pursuant to General Statutes § 47-88b et seq., thereby creating 126 individual condominium units. All of these units are tied into and served by the fire district’s sewer system. Notice to prospective purchasers that the condominium units were being conveyed subject to the terms and conditions contained in the Errichetti agreements, including the formula for computing sewer service charges, was provided in both the public offering statements and the “Declaration of Condominium” issued by Highgate during the conversion process. In making the conversion, Highgate also established the plaintiff Highgate Condominium Association pursuant to General Statutes § 47-74a. The plaintiff is the duly appointed agent of the owners of all of the condominium units and in that capacity is authorized to pay on their behalf all sewer service charges that may be due and owing the fire district.

For the years 1981 through 1986, the fire district submitted the following sewer service charges to the plaintiff:

Billing Date Charge

August 15, 1982 19,176.30

August 15, 1983 21.355.43

August 15, 1984 21.355.43

August 15, 1985 21.355.43

August 15, 1986 21.355.43

These annual charges were determined pursuant to the sewer service formula contained in the Errichetti agreements, i.e., the assessed value of the property (land and buildings) multiplied by the current mill rate, plus 50 percent. In 1981, prior to their conversion into condominiums, the land and apartment houses were assessed at a value of $1,265,300. For the years 1982 through 1986, the value of this same property was assessed at $2,905,500. This increase in assessed value occurred directly as a result of the conversion of the property to the condominium form of ownership in August, 1981. Of course, when this enhanced assessed value was factored into the formula for determining the plaintiffs sewer service charges for the years 1982 through 1986, it resulted in a substantial increase in the charges for those years over the charges imposed in years prior, such as 1981, when the assessed value of the property was considerably less. The plaintiff paid the sewer service charges submitted to it by the fire district for the years 1982, 1983 and 1984 under protest. For each of the years 1985 and 1986, the plaintiff made a partial payment of $7500 to the fire district, which it claims fairly and adequately compensated the fire district for the sewer services provided to the plaintiff in those years.

In July, 1985, the plaintiff instituted a declaratory judgment action seeking injunctive relief and damages for the imposition of allegedly unreasonable and unlawful sewer service charges by the defendants. The relevant portions of the plaintiffs five count amended complaint dated February 17,1987, contain the following allegations. In the first count, the plaintiff claimed that “[t]he amounts charged by the defendant Fire District in August, 1982, 1983, 1984, 1985 and 1986 are unreasonable and far in excess of the charge that would compensate the defendant Fire District for the cost of sewer services provided.” In the second count, the plaintiff alleged that “[t]he sewer use charges imposed by the defendant Fire District for each of the years 1982,1983,1984,1985 and 1986 were imposed in violation of the provisions of the Special Acts which determine the authority of the defendant Fire District in that the Fire District Committee could not reasonably determine that such charges are ‘fair and proper’ for the sewer services provided.” The third count, which was withdrawn after trial, stated that “[t]he method which the defendant Fire District uses to determine sewer use charges is arbitrary, illegal and in violation of the powers conferred upon the Fire District . . . .’’The fourth count, not relevant to this appeal, was also withdrawn after trial. Finally, in the fifth count, the plaintiff claimed that “[t]he assessed value method of determining sewer use charges has never been enacted in any ordinance, regulation or resolution of the defendant Fire District. . . . Consequently, the use of the assessed value method by the defendant Fire District ... is and has been unauthorized and illegal as a method of imposing sewer use charges.”

The case was referred to Hon. Joseph F. Morelli, state trial referee, and judgment was rendered for the defendants. With respect to the first and second counts of the plaintiff’s amended complaint, in its memorandum of decision dated July 21, 1987, the trial court found that the sewer service charges imposed upon the plaintiff for the years in question were fair and reasonable and therefore not violative of the fire district’s charter provisions. On the fifth count attacking the procedural validity of the sewer service formula used by the defendants to compute the plaintiff’s sewer service charges, the trial court ruled that “[t]he Fire District’s Charter authorizes the defendant to establish sewer charges without any direction for the need of an ordinance, regulation or resolution.” The trial court also expressly upheld the substantive validity of the sewer service formula, despite the fact that the third count in the plaintiff’s amended complaint, which challenged the substantive validity of the formula, had been withdrawn after trial.

Additionally, the trial court appeared to offer an alternate basis for its decision in favor of the defendants, i.e., by taking title to their condominium units with notice of the sewer service formula contained in the Errichetti agreements, the plaintiff’s members had “waive[d]” their right to “challenge” the validity of the formula and the sewer service charges computed thereunder. A motion for articulation filed by the plaintiff on August 19, 1987, was denied by the trial court.

On appeal, the plaintiff claims the trial court erred: (1) in ruling that the plaintiff’s members waived their right to challenge the validity of the sewer service formula and the charges computed thereunder; (2) in determining that the sewer service formula used by the defendants is a fair, reasonable and authorized method for determining the plaintiff’s sewer service charges; (3) in disregarding sewage treatment costs submitted into evidence by the plaintiff; and (4) in finding that the sewer service charges imposed upon the plaintiff for the years 1982 through 1986 were fair and reasonable and therefore legally imposed under the fire district’s charter provisions. The plaintiff also assigns error to the trial court’s denial of its posttrial motion for articulation.

I

We address first the question of whether this appeal is properly before us. In its memorandum of decision, the trial court stated: “The plaintiff is not entitled to judicial examination of the 1982-1986 imposed charges since it failed to convince the court by a fair preponderance of the evidence that it is entitled to the same . ... All purchasers of the condominium units [i.e., the plaintiff’s members] were aware of the Errichetti agreements before title was taken; Public Offering Statements issued by Highgate Enterprises upon conversion of the Apartment Complex to condominium concept including [sic] notice by way of Declaration of Condominium. All [of the foregoing] informed purchasers [that] conveyance would be subject to the Errichetti Agreements, therefore each purchaser knowingly and voluntarily took title to the units made subject to the said terms and conditions. Not presenting a challenge at the proper time is tantamount to a waiver.” We treat this ruling of the trial court as a determination on its part that the plaintiff’s members were required to challenge the sewer service formula, of which they had notice prior to the purchase of their condominium units, at the time they took title to their units, and that their failure to do so constituted a waiver that now precludes them from obtaining judicial review of the validity of the formula or the sewer service charges imposed thereunder.

The plaintiff contends that judicial review of its claims is not barred on the basis of its members’ notice of the Errichetti agreements and it assigns error to the trial court’s ruling to the contrary. The plaintiff maintains that where, as here, a claim is made that a utility district is acting beyond the scope of the authority granted to it by the legislature, a court may intervene to examine the alleged unauthorized acts of the utility district and declare them legal or not. We agree.

In Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 548, 427 A.2d 822 (1980), this court stated: “We have long recognized the capacity of taxpayers of towns and cities to challenge the legality of the actions of their municipal officers by seeking injunctive relief against such action. See Belford v. New Haven, 170 Conn. 46, 52-53, 364 A.2d 194 (1975); Bassett v. Desmond, 140 Conn. 426, 430, 101 A.2d 294 (1953); Sauter v. Mahan, 95 Conn. 311, 314, 111 A. 186 (1920); Mooney v. Clark, 69 Conn. 241, 244, 37 A. 506 (1897); New London v. Brainard, 22 Conn. 553, 557 (1853). Such actions may also be brought where the alleged improper action is that of a quasi-municipal corporation. See Larkin v. Bontatibus, [145 Conn. 570, 576, 145 A.2d 133 (1958)].” We further noted that “orneases in this area have required two conditions for the maintenance of actions seeking to challenge municipal conduct: (1) the plaintiff must be a taxpayer of the defendant municipal entity; and (2) the plaintiff must allege and demonstrate that the allegedly improper municipal conduct causes him to suffer ‘some pecuniary or other great injury.’ Bassett v. Desmond, supra, 430.” Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra, 549.

In its amended complaint dated February 17, 1987, the plaintiff repeatedly alleges that it suffered a financial injury due to the defendants’ imposition of sewer service charges which the plaintiff claims were illegal. Thus, the plaintiff’s amended complaint clearly complies with the second condition for standing recited in Alarm Applications Co. v. Simsbury Volunteer Fire Co., supra. With regard to the first condition requiring that the plaintiff must be a taxpayer of the municipal entity, we find that the plaintiff’s members qualify as taxpayers of the fire district for purposes of instituting this declaratory judgment action despite their residence outside of the fire district’s territorial limits. The facts presented in this case clearly demonstrate that the plaintiffs members are in all significant respects the functional equivalent of taxpayers of the fire district. Further, our failure to recognize that the plaintiff and its members have standing to institute this declaratory judgment action would in effect erect an impenetrable barrier to any judicial scrutiny of the legality of the actions of the fire district. This we will not permit. See Boryszewski v. Brydges, 37 N.Y.2d 361, 364, 334 N.E.2d 579, 372 N.Y.S.2d 623 (1975); State Communities Aid Assn. v. Regan, 112 App. Div. 2d 681, 682, 492 N.Y.S.2d 497 (1985).

Nor is our position on the reviewability of this case altered by the fact that, at the time they took title to their condominiums, the members of the plaintiff had constructive notice of the Errichetti agreements and the formula for computing the plaintiff’s annual sewer service charges contained therein. If the charges levied upon the plaintiff by the fire district are deemed to have been in violation of the fire district’s charter provisions, as the plaintiff has alleged, the contractual agreements through which such illegal charges were imposed would also be, necessarily, unauthorized and thus without legal force and effect, the plaintiff’s members’ knowledge and acceptance of such agreements at the time of purchase notwithstanding: “The charter or statute by which the municipality is created is its organic act. Neither the corporation nor its officers can do any act, make any contract, or incur any liability not authorized thereby, or by the legislative act applicable thereto. All acts beyond the scope of the powers granted are void. Thus, in the exercise of its powers, a municipal corporation is said to be confined to the circumference of those granted and may not travel beyond the scope of its charter or in excess of the granted authority.” (Emphasis added.) 56 Am. Jur. 2d., Municipal Corporations § 227 (1971); see Lombardi v. Bridgeport, 194 Conn. 601, 604, 483 A.2d 1092 (1984) (agents of a city have no source of authority beyond the municipality’s charter); Perretta v. New Britain, 185 Conn. 88, 92-93, 440 A.2d 823 (1981); cf. Miller v. Eighth Utilities District, 179 Conn. 589, 594, 427 A.2d 425 (1980). Accordingly, we conclude that the plaintiff did not waive its right to challenge the validity of the sewer service charges in question when its members took title to their condominium units with knowledge of the agreements through which such charges would be imposed.

II

We next consider the plaintiffs claim that the trial court erred in ruling that the sewer service formula used by the defendants to compute the plaintiff’s annual sewer service charges is a fair, reasonable and authorized method for determining such charges. As noted previously, the charges in question were determined by multiplying the assessed value of the plaintiff’s property by the current mill rate, and then adding a 50 percent surcharge. In its brief, the plaintiff mounts two separate attacks upon the validity of this formula, the first directed at the formula’s use of the assessed value of the plaintiff’s property, and the second aimed at the formula’s imposition of a 50 percent surcharge. We refuse to address either of these arguments on appeal, however, because of the plaintiff’s withdrawal, after trial, of the third count of its amended complaint, which contained the only allegations in the amended complaint challenging the substantive validity of the sewer service formula. When the plaintiff withdrew the third count with the trial court’s consent, the trial court lacked the jurisdiction to rule on the issue raised in that pleading, i.e., the substantive validity of the sewer service formula, and its conclusions on this point are therefore a nullity. See Doublewal Corporation v. Toffolon, 195 Conn. 384, 390-91, 488 A.2d 444 (1985) (judgment must ordinarily be restricted to issues reasonably within the scope of the pleadings); Gordon v. Tufano, 188 Conn. 477, 482, 450 A.2d 852 (1982) (trial court lacked jurisdiction to determine validity of promissory note on usury ground where issue had not been raised in pleadings). The resulting absence of a judgment on the issue of the substantive validity of the sewer service formula precludes this court from entertaining on appeal arguments, such as the plaintiff’s, relating to that precise question. See Practice Book § 4000.

Ill

The plaintiff next contends that, in ruling upon the reasonableness of the sewer service charges in question, the trial court improperly disregarded evidence relating to the fire district’s sewage treatment costs, evidence which the plaintiff claims the court was compelled to accept. Specifically, the plaintiff introduced into evidence a chart that it claimed accurately reflected the cost to the fire district to treat the sewage emanating from the plaintiff’s condominium complex during the years 1982 through 1986. The following yearly claimed sewage treatment costs, as well as the undisputed corresponding annual sewer service charges, were submitted into evidence by the plaintiff:

Year Treatment Cost Charge

1982 $ 7,661.70 $19,176.30

1983 5,737.42 21,355.43

1984 8,135.41 21,355.43

1985 10,285.60 21,355.43

1986 12,425.46 21,355.43

The plaintiff arrived at these yearly treatment costs through a series of arithmetical calculations involving information stipulated to by the parties, such as the total number of gallons of water used by the condominium complex, the total number of gallons of sewage treated by the fire district, and the total fire district budget allocable for sewage treatment, for each of the years in question. The treatment costs themselves, however, were not agreed upon by the parties, and, in fact, the defendants’ expert testified that he believed they were based upon insufficient data and therefore inaccurate. The trial court, relying upon this testimony of the defendants’ expert, did not accept the plaintiff’s treatment cost estimates in making its determination that the sewer service charges imposed upon the plaintiff were fair and reasonable.

On appeal, the plaintiff contends that the trial court’s rejection of its treatment cost figures constituted reversible error. In essence, the plaintiff argues that because it calculated the treatment costs by using underlying facts that were stipulated to by the parties, the trial court was compelled to accept these costs as if they too had been agreed upon by the parties. We are unpersuaded. We do not accept the plaintiffs proposition that a fact not directly agreed upon by parties to a lawsuit may nevertheless attain the force and effect of a stipulation merely because that fact is a “byproduct” of other, underlying stipulated facts. If the plaintiff wished to be relieved of its burden of proof in this case on the issue of sewage treatment costs through an agreement of the parties, it was necessary for the plaintiff to enter into a stipulation with the defendants that expressly encompassed those costs. This it failed to do. Consequently, we conclude that the trial court was free to accept or reject the plaintiffs sewage treatment cost figures based upon all of the evidence presented, and, in view of the trial court’s reliance upon the testimony of the defendants’ expert questioning the accuracy of the figures, we cannot say that the trial court erred in rejecting them. Our conclusion on this point is also dispositive of the plaintiff’s next claim, i.e., the trial court erred in determining that sewer service charges levied upon the plaintiff by the fire district for the years 1982 through 1986 were fair and reasonable.

It is axiomatic that before a court may make a finding regarding the reasonablenss of utility rates, a party challenging those rates must prove two things: first, the amount of the charges imposed upon that party for the municipal services rendered, and second, the cost to the municipality to provide those services. See, e.g., Ansonia v. Ansonia Water Co., 101 Conn. 151, 125 A. 474 (1924). It is the differential between these two factors upon which a court’s determination of reasonableness ordinarily must rest. Id. At trial, the charges imposed upon the plaintiff for the sewer services it received were not in dispute. The cost to the fire district to provide these services, however, was an issue in the case and it was the plaintiff’s burden to establish this factor. The plaintiff’s failure to do so, as evidenced by the trial court’s rejection of the plaintiff’s sewage treatment cost estimates, was fatal to the plaintiff’s case in that it effectively precluded the trial court from reaching any finding with respect to the reasonableness, or unreasonableness, of the sewer service charges in question. Accordingly, we conclude that the trial court’s determination that the plaintiff failed to prove by a fair preponderance of the evidence that the sewer service charges imposed upon it by the defendants were excessive or illegal was not clearly erroneous.

IV

The plaintiff’s final claim on appeal is that the trial court erred in denying the plaintiff’s posttrial motion for articulation. We have held that “where a party is dissatisfied with the trial court’s response to a motion for articulation, he may, and indeed under appropriate circumstances he must, seek immediate appeal of the rectification memorandum to this court via the motion for review. Practice Book §§ 3082, 3108 [now §§ 4051,4054] . . . .” (Citations omitted.) Barnes v. Barnes, 190 Conn. 491, 493 n.2, 460 A.2d 1302 (1983). The plaintiff failed to move for review in this court of the trial court’s refusal to articulate further its decision. Accordingly, we decline to address the plaintiffs assignment of error on that point.

There is no error.

In this opinion the other justices concurred.

       The Watertown fire district is the named defendant in this lawsuit. The second defendant is Duane George, who is presently the superintendent of the fire district and in that capacity is responsible for the collection of sewer service charges imposed by the fire district upon persons, such as the plaintiffs members, who reside outside of the fire district’s territorial limits.

       General Statutes § 47-74a provides in pertinent part: “(a) When unit owners other than the declarant own more than one-third of the units in the condominium, they shall be entitled to elect not less than one-third of the members of the board of directors of the unit owners’ association. Unit owners other than the declarant shall elect not less than a majority of the members of the board of directors of the unit owners’ association not later than five years after the date of the recording of the original declaration, and, prior to the expiration of such five-year period, shall be entitled to elect not less than a majority of the members of the board of directors upon the happening of the earlier of the following two events: (1) Sale by declarant of sixty per cent of the units in the condominium or (2) completion of seventy-five per cent of the units in the condominium, with some such units having been sold, but no more than six units having been sold in the six-month period preceding the call for an election pursuant to subsection (b) hereof. . . .
      “(b) At any time after unit owners other than the declarant are entitled to elect a member or members of the board of directors of an association, the association shall call and give not less than thirty nor more forty days notice of a meeting of the unit owners for this purpose. Such meeting may be called and the notice given by any unit owner if the association fails to do so.”

       Increases in the mill rate from 3.6 to 4.4 in 1982, and from 4.4 to 4.9 in 1983, also contributed to the plaintiffs rising sewer service charges.

       The fifth count of the plaintiffs amended complaint, which was not withdrawn, does in fact challenge the validity of the sewer service formula, but on specified procedural grounds only. The plaintiff makes no claim on this appeal relating to the allegations contained in the fifth count or the trial court’s ruling as it pertains to that count.

       The trial court clearly consented to the plaintiffs withdrawal of the third and fourth counts of its complaint, as evidenced by the judgment file, signed by the trial referee, which states in pertinent part: “And thence to April 27, 1987, when the parties appeared for trial and submitted to the court a stipulation of facts with attached exhibits dated February 17, 1986, at which time the parties were at issue as to the first, second and fifth counts of plaintiff’s amended complaint, the plaintiff having withdrawn the third and fourth counts thereof.”

       Under ordinary circumstances, a formal agreement or stipulation of fact fairly entered into is controlling on the parties and the court is bound to enforce it. See, e.g., Pyne v. New Haven, 177 Conn. 456, 464, 418 A.2d 899 (1979).

       We have indicated previously that a trial court’s findings regarding the reasonableness of utility rates is governed by a “clearly erroneous” standard of appellate review. See, e.g., Barr v. First Taxing District, 151 Conn. 53, 57, 192 A.2d 872 (1963) (court’s responsibility on appeal was to determine whether trial court was obliged to find that plaintiffs had established by a fair preponderance of the evidence that utility rates were unlawfully discriminatory). We conclude that this is the standard of review applicable to the trial court’s findings regarding the reasonableness of the sewer service charges at issue in this case.