author: Storrs, J. Ellsworth, J.

text:
    Smith vs. Lewis.
    A refusal of one of the parties, to a contract founded upon mutual and concurrent conditions, to perform his covenants, will excuse a want of entire and absolute preparation, by the other.
    The party to such contract, seeking to recover for a breach, must, at least, show that he was “ ready and willing” to perform his part of the agreement.
    A voluntary absence of such party, from a place assigned for its performance, is tantamount to a refusal, and will excuse the other party from the performance of such acts, as the absence renders impossible, or nugatory, and tends directly to dissuade.
    Such a refusal will excuse acts of mere formal preparation, as well as acts of strict performance, if the refusal is the direct and reasonable cause of their omission.
    S. being under covenant obligations to exchange real estate with L., and to pay a sum of money on a given day, verbally arranged to meet L. at the residence of the latter, in another town, with an express view to preparing conveyances, and completing the exchange. S. repaired to the place appointed, at a reasonable hour on the day assigned, and found that L. had left the town at an early hour and under such circumstances, as to make it apparent that his absence was fraudulently designed to avoid performance. L. remained absent all day, and S., in consequence, took no steps towards removing certain incumbrances on his own real estate, and did not take his money into his manual possession from several places of deposit, nor prepare the title deeds to his property. Held, that S. was justified in discontinuing acts of preparation; that as he was “ ready and willing” to perform, and as his want of complete formal preparation was in consequence of L.’s refusal, the latter could not take advantage of the omission, to defeat his right of recovery.
    An executory contract, under seal, cannot be discharged, or released, by an ex-ecutory verbal contract.
    This was an action on a covenant in the following terms :
    “ Articles of Agreement made and concluded upon, this 17th day of January, A. D. 1852, between Gilson Lewis, of Suffield, in the county of Hartford, and state of Connecticut, of the one part and Israel Smith, of Windsor, in the county and state aforesaid, of the other part.
    First.—The said Gilson Lewis, in consideration of one dollar, to him paid by the said Smith, (the receipt whereof is hereby acknowledged,) and in further consideration of the promises of the said Smith, hereinafter contained, doth hereby, for himself, his heirs, executors, and administrators, and every of them, covenant, promise, and agree, to and with the said Israel Smith, his heirs, executors, and administrators, and every of them, by these presents, that he, the said Gilson Lewis, shall or will, on or before the first day of April next, after the date thereof, by such conveyances, assurances, ways and means in the law, as he, the said Smith, shall [reasonably require, well and sufficiently grant, sell, release, convey, and assure to the said Smith, and his heirs, or to whom he or they shall appoint or direct, all that certain tract or parcel of land lying and being situated in Suffield, aforesaid, containing an area of forty acres, more or less; with a tavern and dwelling house, barns, carriage-house and other buildings thereon standing, with covenants to be therein contained that the said premises, at the time of such conveyance, are free of all incumbrances and demands whatsoever, excepta demand of one thousand dollars, secured by a mortgage on the said premises, given by the said Lewis to Mercy Spencer, dated the 16th day of July, 1834, as by reference to said mortgage deed will more fully appear, and all other usual and reasonable covenants.
    Second.—In consideration whereof, the said Israel Smith, for himself, his heirs, executors, and administrators, doth hereby covenant, promise and agree, to and with the said Gilson Lewis, his heirs, executors, and administrators, by these presents, that he, the said Smith, shall or will, at the time of executing said conveyances, on or before the first day of April aforesaid, pay to the said Gilson Lewisthe sum of two thousand dollars, and shall also, at the same time, by such conveyances, assurances, ways and means in the law, as he, the said Lewis, shall reasonably require, well and sufficiently grant, release, sell, and convey to the said Lewis and his heirs, or to whom he or they shall appoint or direct, all that certain tract or parcel of land, lying and being situated in Windsor aforesaid, in the village of Windsor Locks, containing an area of one acre, more or less, with a dwelling house, tailor’s shop, barn, and other buildings thereon standing, with covenants to be therein contained, that the said last mentioned premises, at the time of the said conveyance thereof, are free of all incumbrances whatsoever, and all the other usual and reasonable covenants.

      Third. And it is further agreed by and between the said parties, in consideration as aforesaid, that at the time of said conveyances, the said Smith shall buy of the said Lewis, all of the household furniture and farming utensils now on the said first mentioned premises, except such few articles as the said Lewis may wish to reserve for his own use, and shall pay to the said Lewis therefor, a sum of two hundred and fifty dollars less than said personal property shall be then valued and appraised to be worth by two judicious and disinterested men, one of whom shall be selected by each of the parties, the two appraisers to choose an umpire in case of disagreement.
    And for the true performance of all and every the covenants and agreements aforesaid, each of the parties to these presents doth hereby bind himself, his heirs, executors and administrators, to the other of them, his heirs, executors, administrators, and assigns, in the penal sum of one thousand dollars.
    In witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year first above written.
    Gilson Lewis, [l. s.]
    Israel Smith, [l. s.] ”
    The defendant pleaded the general issue, with notice of special matter to be given in evidence, upon which issue was joined to the court.
    The cause was tried at the term of the superior court, holden at Hartford, in October, 1855, when the following facts were found by the court, and the case was reserved for the advice of this court.
    On the trial, the due execution of the covenant was admitted.
    The plaintiff proved, that on the Monday preceding the first day of April, 1852, it was arranged between the plaintiff and the defendant, that the writings which it should become necessary to make between them on the first of April, in the execution of the covenant, should be drafted by an attorney, and that they would meet, on that day, at the house of the defendant, and then go to the attorney’s office, which was near by; that the plaintiff went to the defendant’s house, about 9 or 10 o’clock in the forenoon of the first of April, with an appraiser, for the purpose of appraising the personal estate mentioned in the contract, and remained waiting there, an hour or more, when he returned to his place of residence, about four miles distant, and consulted with counsel as to what was necessary to be done in the absence of the defendant, and he went again, in the afternoon, to the defendant’s house, and remained there until about sun set.
    During that day the plaintiff also went to the attorney’s office and found it shut, and during the day, he enquired for the defendant and made known to the defendant’s family the business which brought him there, and declared his wish and readiness to complete the contract.
    It was further proved, that the defendant left home early in the morning of the first of April, and continued absent during the whole day. The plaintiff claimed, that on said first of April he was ready and willing to fulfil the stipulations of the covenant, on his part to be performed; and the defence rested upon the denial of the plaintiff’s claim in that respect, and there was no other defence in the case, except this, and a claim which was ultimately disposed of asa question of law, as hereinafter stated. Upon the question, whether the plaintiff was, or was not, ready to perform, so as to be entitled to recover, the court found, that on said first of April, there were three mortgages upon the real estate which the plaintiff, by his covenant, was to convey to the defendant; one to Milton Hathaway, dated April 2, 1850, to secure a note for $700, on which was due, on the first of April, 1852, the principal and interest; one to Louisa Pheíon, dated Dec. 3,1851, to secure a note of $800, on which was due, on the first of April, 1852, the principal and interest; one to Lucius B. Chapman, dated March 27,1852, to secure a note of $330, on which the full amount of the note was also due.
    The plaintiff, in order to remove said incumbrances and to provide the money necessary to be paid to the defendant, had furnished himself with cash in hand, to the amount of something over $2000, and shortly prior to the first of April, had made arrangements with said Hathaway and Phelon to remove their mortgages, either by payment, or by transfer from the plaintiff’s property to the property which he should receive from the defendant, if the covenants were carried into effect. The plaintiff had also made an arrangement with a Mr. Corbin, to help him procure from $100 to $400, if he should want it on the first of April; and the plaintiff had also agreed with a Mr. Harmon, of" Suffield, that he would let the plaintiff have $2000, on said first day of April, which latter sum was to be secured by a mortgage of the property which the plaintiff expected would be deeded to him by the defendant, under the covenant. Said Harmon testified that “ he should have had no hesitation to let the plaintiff have the $2000 on that day, all the other parties being present to make out the necessary papers, and that he knew the plaintiff must have a title to the place before he could give the witness security for the $2000, and that he should have paid the money over to the plaintiff before the plaintiff had got a deed for security, if it had been necessary, with the understanding that the plaintiff should give the witness security, as soon as he got a title of the Lewis place, with the understanding that the witness was to have security, by mortgage on the Lewis place, first after the Mercy Spencer mortgage of $1000.” Harmon also testified, “ that he did not have the money in his hands, on the first day of April, but in all probability would have had it, if the plaintiff had called for it. The understanding was, that it should be ready on that day. He had no doubt but he could have raised the money for the plaintiff, on that day.” There was also further proof tending to show that this $2000 would have been ready for Harmon, if he had wanted itfor the plaintiff. Harmon lived about one and a half miles from the defendant’s house, on the same road with Miss Phelon’s residence, and was to get the money, about four miles from his own residence, and about the same distance from the defendant’s place of abode. The persons, holding mortgages upon the plaintiff’s place, resided, one of them within two miles, one within two and a' half miles, and one within four miles of the defendant’s place, in Suffield, the latter two upon the same road, and they were all at home on the first of April, and the plaintiff expected, if the defendant had been at his house, and had manifested a disposition to perform his part of the covenant, to send for the mortgagees and to pay off the encumbrances, unless he could arrange to transfer .them to the property he expected to acquire from the defendant. The plaintiff intended, in good faith, to perform his part of the covenant, and had made such arrangements towards this object, that if the defendant had not been absent, but had met the plaintiff, agreeably to the arrangment, at a seasonable hour of the day, it would have been in the plaintiff’s power, subject only to the contingencies necessarily attendant on such transactions, to fulfil his part of the contract; but the arrangements for removing the encumbrances and procuring the money would probably have occupied some hours before the plaintiff would have been in a condition to convey to the defendant an unincumbered title, and to pay to the defendant the money, to which he would be entitled under the contract.
    Upon the part of the defendant, it was claimed, that the plaintiff, in order to recover, ought, on the first of April, to have been ready without delay, and without risk of the contingencies to which his arrangements were necessarily liable, to make an unencumbered title to the defendant, and to pay to him the money to which he was entitled, under the contract.
    On the part of the plaintiff, it was claimed*that if he had made arrangements, such as would with reasonable certainty secure the performance of the contract on his part, if the defendant had done his duty in being at home, this was a sufficient readiness on his part, to enable him to maintain the action, and the court found that, if upon the foregoing facts this court should be of opinion that the plaintiff ought to recover, then judgment should be rendered for the plaintiff, to recover the sum of ¡$250 damages, and costs, unless this court should be of opinion that the defendant was entitled to a new trial, on account of the rejection of certain evidence which was offered, by the defendant, to show that, after the execution of the aforesaid covenant between them, and before the time fixed for its execution, they mutually and verbally agreed to abandon the same, which evidence was received, subject to objection, but finally rejected by the court, upon the ground that it was not competent, by such parol testimony, to dissolve the written and sealed agreement of the parties.

      L. F. Robinson and W. D. Shipman, for the plaintiff, contended, that;
    1. In covenants founded upon concurrent conditions, a readiness and willingness to do an act are equivalent to actual performance, in case of the refusal, or of what is tantamount to a refusal, the absence, of the other party. Kemble v. Mills, 39 E. C. L. R, 640, (642:) 1 Chitt. Pl., 284: Morton v. Lamb, 7 Term. Rep., 125. Tasker v. Bartlett, 5 Cush., 359.
    2. The phrase “ ready and willing” is to be construed in its ordinary sense, and implies merely a physical ability, suitable preparation and a disposition to perform the acts required. Rawson v. Johnson, 1 East., 202, (206,) per Ld. Kenyon. Cort v. Railroad Co., 6 E. L. & Eq. R., 230, (235,) per Ld. Campbell. Borden v. Borden, 5 Mass., 67. Hammond v. Gilmore, 14 Conn. R., 479. This degree of readiness is established by the finding.
    3. If formal acts are essential to constitute “readiness,” the plaintiff may be as clearlyjexeused or prevented, by the conduct of the other party, from acts of preparation as of performance. Cort v. Railroad Co., 6 Eng. L. & Eq. R., 230. Jones v. Barclay, 2 Doug., 684. Southworth v. Smith, 7 Cush., 391. Rawson v. Johnson, 1 East., 202. Williams v. U. S. Bank, 2 Pet., 965.
    4. The absence of the defendant, from the place where it was expressly arranged that the preparations should be completed and the covenant should be performed, rendered further preparation, under the special circumstances of the case, either impossible or nugatory, and therefore either prevented or excused it; especially as the absence was manifestly voluntary, and so understood by the plaintiff. He was justified in expecting the defendant’s presence, and properly refrained from pursuing the idle ceremony of an outward preparation, the benefit of which he was fully assured the other party was fraudulently avoiding. Southworth v. Smith, 7 Cush., 391. North v. Pepper, 21 Wend., 636. Avery v. Stewart, 2 Conn. R., 84. Gilmore v. Holt, 4 Pick., 258.
    5. It would be [unconscionable to permit the defendant, under such circumstances, to plead, that, if he had not refused to perform, other contingencies might have disabled the plaintiff from perfecting his preparations. It is true, that the plaintiff might have been robbed and murdered, while going after his money; but the court will not presume it.
    II. A sealed executory contract cannot be released, or rescinded, by a parol agreement, especially if the latter is executory. Smith on Contracts, 84. Delacroix v. Bulkley, 13 Wend., 7l. Allen v. Jaquish, 21 Wend., 628.
    ■ The parol contract in the present case, was not a substituted agreement, founded on a new and independent consideration, and performed in whole, or in part, but a simple verbal discharge.

      Hooker Sf Philleo, for the defendant.
    I. In an action for breach of contract, where the covenants are mutual, dependent and concurrent, the plaintiff, in order to recover, must prove, 1, that he performed all his own duty; 2, that the defendant failed to perform his duty. If both parties are in default, neither can recover against the other, though there is a difference in the degree of default. Courts will not measure the difference of blame, in the conduct of parties, and apportion damages to the one least blameable, any more in the case of a breach of contract than in a case of personal injury. Park v. O'Brien, 23 Conn. R., p. 345. Neal v. Gillett, id. 443-4. Even if the rule were otherwise, it plainly appears, by the finding in this case, that the defendant was more nearly ready than the plaintiff, and so less in default.
    II. To gain aright of action, a plaintiff must perform his covenant, or, in lieu thereof, tender a performance, made of substance, by a present readiness and ability, to perform, or he must be excused from performance, or tender, or present readiness and ability, by some words, or acts, of the other party.
    The defendant’s absence waived absolute performance and a mere formal tender, but not a state of readiness and ability to perform. No circumstance is found which gives any significance to the defendant’s absence, except its continuance to a late hour of the day. Until this absence had been protracted so long that there was no longer time for the defendant to return and make and deliver a single deed, he was not in default, and until he was in default, there was no waiver of anything by reason of his default, and it appears by the find-. ing, that long before this hour arrived, the plaintiff having} unlike the defendant, much to do in order to get ready, had become hopelessly in default.
    The distinction between the cases cited, (6 Eng. L. & Eq., 230, and 2 Doug., 6S4,) and this case, is obvious. In those cases, at the time of the waiver, the party whose further performance'was waived, was not in default, but was as ready, as by the terms of the contract, he was bound to be at that time ; but here, there was no waiver until the absence of the defendant has been protracted to such an hour, that there was no longer time for him to return and perform, and at that time, the plaintiff was in default himself, inextricably, and had been so for “ some hours.”
    By the finding it appears, that at no time during the day was the plaintiff actually ready and able, and it does not appear that he ever could have been ready, for certain contingencies are found to have' actually existed, none of which were caused by the defendant’s absence, and which, long before the time had arrived at which it was no longer possible for the defendant to return and perform, had ripened from contingencies into absolute impossibilities.
    Unless waived, (and here there was no waiver, at least, until a late hour of the day,) the readiness required of the plaintiff, seeking to gain a cause of action against the defendant, was a present readiness and ability, subject to no contingency, and, at any rate, not subject to contingencies “ of the sort to which such a transaction as this was necessarily liable.” Holmes v. Holmes, 12 Barb., 137. Tyler v. Young, 2 Scam., 445. Bank of Columbia v. Hagner, 1 Pet., 455. Cornwall v. Haight, 8 Barb., 327. Chit, on Con., 570. 1 Sw. Dig., 199-200. 2 Greenl. Ev., § 603.
    2. Was the defendant inexcusably in default? This does not appear in the finding, and this court will not presume a fact not found by the court below, especially, as, in this case, the defendant offered testimony to explain his absence; and it is not seriously claimed that the defendant’s absence was with a fraudulent intent. But the defendant was not bound to be present, until his presence was requisite, which was not the case, so long as the plaintiff, himself, was totally unprepared.
    The defendant even had a right to rescind the contract under the circumstances in this case. Judson v. Wass, 11 Johns. R., 525. Holmes v. Holmes, 12 Barb. R., 137.
    From mutual acts only, is the party, who is present, absolved in the other’s absence, (if even from these,) for, to gain a right of action, in the case of mutual and concurrent covenants, more must be done than is requisite for the purpose of avoiding the penalty of a breach. Porter v. Rose, 12 Johns. R., 209. Smith v. Loomis, 7 Conn. R., 110; 1 Chitt. Pl., 326.
    II. The testimony, rejected by the court, ought to have been admitted.
    1. As matter of defence. A sealed contract may be waived or abandoned, before breach, by a subsequent executed agreement, either verbal or in writing not under seal. Hall v. Stewart, 5 Day, 428. 1 Green. Ev., § 302-3. Dearborn v. Cross, 7 Cow., 48. Lattimore v. Harsen, 14 Johns., 330. Munroe v. Perkins, 9 Pick., 301-2-3. Lefevre v. Lefevre, 4 S. & R., 241. Heard v. Wadham, 1 East. R., 619, p. 630. 1 Sw. Dig., 300. Imlay v. Huntington, 20 Conn. R., 147. 2. To explain the absence of the defendant, which the plaintiff may otherwise claim was fraudulent, and that he was thereby excused from what otherwise would have been his duty.
   Storrs, J.

The parties were under covenant obligations to exchange real estate on a day certain. A place of meeting had been provided for, by verbal arrangement, as they resided in different towns; and it was further agreed that they should together proceed to an attorney’s office, where the necessary conveyances might be drafted at the proper time. The plaintiff repairs to the place in question, which is the residence of the defendant, in another town, for the purpose honestly entertained, of performing the contract. The finding shows that the plaintiff had it in his power to perform, (unless prevented by extraordinary contingencies, the occurrence of which a court will never presume, or imagine,) and that he would have performed, had the defendant' presented himself, within a reasonable time, to receive the benefit of the plaintiff’s acts. The defendant remained absent during the whole day, and as no excuse is offered for this breach of duty, we are compelled to infer that it was intended to defeat the contract, and fraudulent. That it was a refusal, is conceded. The only defence set up is, that the plaintiff failed to finish certain formal acts of preparation, and to make an outward manifestation of his ability to the fullest extent possible. It seems to be claimed that he was bound to do every thing towards performance, that the defendant’s absence did not render physically impossible,— that the absence excused no other defects of performance than those which it was impossible for him to have supplied, without the defendant’s presence. Such a claim is an interposition of extreme technical suggestions against the requirement of common honesty, and brings to mind the just observation of Lord Kenyon in a similar case. Rawson v. Johnson, 1 East., 206.) “ However technical rules are to be attended to, and in some cases they cannot be dispensed with, yet in administering justice, we must not lose sight of common sense; and the common sense of this case will not be found to militate against any rule of law.” At all events, however such a case as the present, or as that of Cort v. The Ambergate Railway Company, (6 E. L. & Eq. R., 230,) might have been decided in Lord Kenyon’s time, we cannot but think that, in this age, a court would be slow to overrule the principle of justice recognized in the latter decision, and which we have endeavored to apply to the present action.

It is not claimed that a tender of performance is necessary, to entitle the plaintiff to a recovery; that was physically impracticable. But it is justly said that the proof must show, that the plaintiff was “ready and willing” to perform; and the disposition and ability being proved, the only remaining objection relates to the degree of preparation. The plaintiff had not his money in his formal possession ; he had not cleared his own estate of incumbrances; and had not prepared the title-deeds of his property; all these preparations he had suspended, in view of his arrangement to meet the defendant, at which he expected some facilities to be furnished by the defendant, not necessary, but convenient to himself; but all which preparations he was able to complete, and would have completed, if the defendant had not by his absence, under the peculiar circumstances of the case, induced him to desist. By yielding to this inducement, it is said, he has defeated his own right to a recovery. The argument is, that, although the plaintiff was naturally and rightfully convinced by the unexplained, and evidently contrived absence of the other contracting party, that the latter was determined to break the contract, and was thereby dissuaded from the nugatory and superfluous acts of taking his money into his manual possession, of procuring the release of mortgages and actually drafting and acquiring conveyance of his own real estate, he thereby fell short of his duty; that there is a legal and arbitrary standard of readiness, which is not to be affected by the absence of the other party; that the legal effect of absence is limited to the mere excuse of the tender of performance; that, in cases like the present, the act of a party will not, as his declaration would, justify the other in attaching to it an ordinary and natural import; that the act of absence, no matter what its attendant circumstances, or how clearly it reveals a fraudulent intent to violate a contract, has a limited and arbitrary legal effect; and that a party, who by such conduct actually causes another, not unreasonably, to suspend the further performance of his contract, can take advantage of his own wrong and set up the defect of performance, as a breach of legal duty; that the party, claiming to be excused, must show that he is excused, by the law, and not by the other contracting party; as if there were any legal duty under a contract, which the parties may not dispense with by their own voluntary acts.

Notwithstanding some confusion in the decisions arising from the endeavor of courts to apply, in this class of controversies, the principles of common reason and justice to the particular case, we have been unable to find that any such legal and arbitrary standard of readiness exists, as is thus suggested, or that there is any prescribed legal effect to the wilful absence of a contracting party from the place of performance, or that the extent of necessary preparation may not vary with circumstances, and the attitude of the other party, or that a refusal will only excuse from such covenant duties, as it may render impossible to perform. On the contrary, we think it to be a demand of justice, that a wilful refusal, with which a wilful absence is conceded to be identical, will excuse the performance of all acts, including formal acts of preparation, of which the refusal fairly imports a renunciation and disavows the acceptance; in other words, of all acts, of the failure to do which the premeditated conduct of the other party is, in a just and reasonable sense, the direct and undeniable cause.

In the case above referred to, (Cort v. The Ambergate Railway Company,) a party had covenanted to manufacture and to furnish the defendants with a specified quantity of certain necessary parts of a railway track, to be paid for on delivery. Before the contract was completed, the company gave notice that they had no occasion for any more of the articles in question, and should not pay for them, if forwarded. No more therefore were manufactured, or tendered, and a suit was brought, not for the quantity delivered, but on the covenant itself; the declaration alleging a readiness and willingness to deliver the residue of the property, and a refusal, on the part of the defendants, to accept it. These allegations were traversed, and the defendants insisted that they had manifestly never refused to accept that, which could never have been tendered to them, and that the plaintiffs, plainly, were not “ ready and willing” to deliver goods, which never had been in existence. And they might have argued, as is argued here, that their refusal to pay for any more articles did not prevent the plaintiffs from manufacturing and tendering the residue, and that the latter should have done this, before averring a readiness to perform their duty under their special contract. The court were thus compelled to decide whether there was any technical standard of readiness to be adhered to, at all events, by the party seeking to recover upon such covenants, or whether formalities of preparation might be dispensed with, after a refusal by the other party. Lord Campbell, in justifying the jury in finding that the plaintiffs were ready and willing to perform the contract, emphatically says : “in common sense, the meaning of such an averment of readiness and willingness must be, that the non-completion of the contract was not the fault of the plaintiffs, and that they were disposed and able to complete it, if it had not been renounced by the defendants.” The defendants, having insisted that they did not prevent, or discharge the plaintiffs, from furnishing the residue of the property, the court say further, “ may I not reasonably say that I was prevented from completing a contract by being desired not to complete it? Are there no means of preventing an act being done except by physical force, or brute violence ? ” And again: “‘discharge’ only means, like ‘prevent,’ that the act of the plaintiffs was the cause of the residue of the chairs not being delivered, and of the contract not being further executed, or performed.” The case before us does not require us to go to the full extent of the decision just cited. In that transaction, there was a physical impossibility of completing the preparation, requisite to constitute an absolute “readiness,” on the last day of performance; the present plaintiff, had the defendant appeared at a reasonable hour, could have perfected his preparations. But from the English decision we draw the important inference, that a refusal of one party to perform his covenants, will excuse a want of entire and absolute preparation by the other. The doctrine, however, was not new. In Jones v. Barklay, (2 Doug. R., 684,) one of the concurrent acts to be performed was the execution and delivery of an assignment of an equity of redemption. The plaintiffs averred that they had offered to execute, and tendered an unexecuted draft of such an assignment, but that the defendant absolutely discharged the plaintiffs from executing the same, or any assignment, or release whatever. The argument was, that this was insufficient ; that “ the plaintiffs ought to have done every thing they had engaged to do, as far as was in their power, without any concurrence of the defendant; they might have executed a release, but instead of doing so, they only tendered a draft of a release.” Lord Mansfield pronounced the judgment of the court. “ If ever there was,” said he, “ a clear case, I think the present is. * * * * The question is, was there ajsufficient performance? The party must show he was ready; but if the other stops him on the ground of an intention not to perform his part, it is not necessary for the first to go further, and do a nugatory act.”

We are called upon to determine simply, whether the voluntary, and fraudulent absence of the defendant was such a refusal, as to be the direct and reasonable cause of the plaintiff’s omission to complete his preparations. If this were not so, he would fall short of a legal readiness to perform. »If it were so, we cannot assent to the claim of the defendant, that the effect of such an absence was only to dispense with such acts as the plaintiff could not perform, without the defendant’s personal presence. As a place of meeting had been expressly assigned, and an arrangement had been made, for completing, at least, some of the necessary preparations of the plaintiff) after the parties should meet, we think that the plaintiff was justified in concluding, after waiting until the latter part of the day, that the defendant was wilfully absenting himself, as we also think the finding shows the fact really was, and meant thereby a total and absolute refusal to execute the contract; that the plaintiff was justified in treating this conduct of the defendant, in the same manner as if the defendant had met him in the early part of the day, and told him that he need not take another step towards the consummation of their agreement; that as for himself, (the defendant,) he would not, under any circumstances, perform. Had this been done, it would not be insisted that the plaintiff should, notwithstanding, have proceeded to take his money into his manual possession and remove the incumbrances on his land. We think that the defendant’s absence was the cause of the plaintiffs suspending his preparations ; that the latter acted reasonably in permitting himself to be operated upon by the defendant’s conduct, as he was, and in drawing the inference from it which he did, and that the defendant should not now be permitted to set up a defect of readiness on the plaintiff’s part, of which he was himself the cause, and from which he thereby excused and discharged the other. In short, we do not sanction the idea, that a wilful absence from the place appointed for the completion of a contract, especially when it is previously understood that a part of the preparations are to be there made, is equivalent only to a waiver of tender of performance; but that it carries with it an excuse for a suspension of formal preparation, whenever ^such suspension would be the natural effect of reasonable and just inferences drawn by the. other party from such absence and its attendant circumstances. Such would be the case with an express refusal; there is no just reason why the conduct of a party should not bind him to the same extent as his words. That a voluntary absence, such as we are considering, has a greater effect than is assigned to it by the defendant’s counsel, is apparent from a case cited at the bar. (Southworth v. Smith, 7 Cush. R., 391.) Upon a claim made that the money to be tendered, in fulfilment of a contract with a party fraudulently absent, should have been counted, and that, for failure to do this, the demandant had not done all that was necessary, the court held, that the same reason, which excused an actual tender, was a sufficient answer to the other objection suggested, although it was clearly an act, which the absence did not prevent. Having concluded that the plaintiff was ready and willing in all particulars, except in such as he was excused and discharged from completing, by the fault of the defendant, we think him entitled to recover.

As to the other point in the case, we are of the opinion that the court properly refused to hear evidence relative to a parol executory discharge of a sealed executory agreement. Whatever modifications may have been permitted, by courts, of the old common law maxim, unumquidque ligamen dissolvitur eodem ligamine quo ligatum est, and whatever may be the extent to which the courts of this state would adopt them, we are not aware that any case, of high authority, has permitted a mere verbal agreement for the release of a covenant under seal, without an execution by the cancellation, or surrender, of the covenant itself, to operate as a discharge of the most solemn instrument known to the law. 6 Co. 43, a. Cro. Jac., 99. 2 Wils. R., 86. 1 Taunt. R., 429. 10 Wend., 180. 11 id., 27. 13 id., 71. Cow. & Hills' notes to Phill. Ev., 1479. It is clear that sealed contracts for the performance of future acts would be of little avail, if parol testimony could be received to show that the parties verbally agreed, before the time of performance arrived, to dispense with the obligations of the covenant.

We advise a judgment for the plaintiff.

In this opinion, Hinman, J., concurred.

Ellsworth, J.

I am not satisfied with the resultto which the court have come in this case, though I do not question many of the positions taken in the opinion of my brethren.

The covenants, in this instrument, are conceded to be mutual and dependent. Hence it was necessary for the plaintiff to aver, in his declaration, that he was ready and willing to perform, and, in order to establish the truth of the averment, to prove that, on the first day of April, 1852, he was at the residence of the defendant, in Suffield, able and ready to pay the defendant $2,000, in money, and give him a clear and perfect title by deed, to the plaintiff’s real estate in Windsor; and that he tendered all this to the defendant, or was excused from doing it.

What then are the facts? On the first of April, there were on the plaintiff’s land, three outstanding valid mortgages, for the sum of about $1900; one of which had been given only three days before. The plaintiff did not tender a deed from himself, nor did he make, or procure a deed to be made. The plaintiff was likewise to pay $2,000 in cash, on the exchange of deeds. This sum it appears he had, before the day, furnished himself with, though it does not appear that he carried it to Suffield, or could, or would, certainly, have paid the defendant, if the defendant had been at home, although it may be inferred that he could have got it and tendered it.

In this equivocal condition, he presented himself on the first of April, at the defendant’s dwelling house, and said to some of the family that he was ready to perform his contract. The defendant was absent from home; but on what account, or for what cause, does not appear; whether he was absent of choice, or from necessity, or other cause, or perhaps having no faith in the sincerity or ability of the plaintiff to perform, or believing that the whole thing had been abandoned, as he attempted to prove on the trial (but the court would not permit it,) treated the thing as unimportant and went about his business, is not found by the judge below. The defendant’s absence would undoubtedly bar a suit in his favor against the plaintiff, but, if I am correct, it did not excuse the plaintiff from an actual present ability and readiness on his part, so far as it depended on himself, without the co-operation of the defendant, he could and should have paid off the three mortgages, and brought with him release deeds from the mortgagees, as well as a duly executed deed from himself, together with the $2,000, which he was to pay the defendant. None of these things did he perform. If the absence of the defendant is a good answer for this omission, then it would have been equally well for him to have remained at his own house, and proved what he has attempted to prove, since his going to Suffield had no effect whatever.

Now what is the defendant’s excuse for not being actually ready to perform, as he ought to have been? Why, he had some kind of an agreement with two of the mortgagees, that, if he should desire it, and duly inform them, they would permit him to pay up their mortgages, or transfer to them security on the Lewis property, after he had got a good title to it from the defendant; and likewise agreed with one Corbin, who lived somewhere, at some previous day, that Corbin would help the plaintiff, to procure from $100 to $400, if wanted, the first of April; and with one Harmon, of Suffield, to obtain from a person who lived four miles west of him, if actually wanted and called for, the sum ,of $2,000, and would loan it to the plaintiff, on the security of the Lewis place, if all the parties could be present, and he would have the title, as soon as it. had vested in the plaintiff. Nothing more was done by the plaintiff towards an actual readiness, or tender of performance, on the first day of April, because, as the plaintiff says, the defendant was not at home, as he had agreed he would be. The character of this kind of readiness may be learned from the testimony of Harmon, who was expected to get the money from a townsman, four miles off. . He testified that he could not swear it would be so ; he thought it would; and had no doubt it would have been so, had he been called on to go after the money.

The court further find, “ that if the defendant had not been absent, it would have been in the plaintiff’s power, subject only to the contingencies necessarily attendant on such a transaction, to perform his part of the contract. These are the very contingencies, in the eye of the law, which prove that there was no present ability, or readiness, in the plaintiff, to perform. Had he attempted to be ready, as he should have done, he might have found it wholly impracticable, certainly on that day, as I am much inclined to believe would have been the case, and in that event, he would fail to show that the loss arose from the neglect of the defendant. I cannot refrain from the belief that neither party expected to perform. In the case of dependent covenants, the party who brings an action for the default of the other, is required to prove an actual, rather than a theoretical readiness, in order to show that he has done all he can do, and that the loss entirely arises from the defendant’s neglect, and not the plaintiff’s inability. A possible, or probable readiness is not enough, not even if he can show that his money is in the bank, and his papers can be made out at once, much less, if the money is to be run down, in the country, and an indefinite number of hours will be necessary to hunt up the persons concerned, even if at home, and get the papers ready, and the business prepared for completion.

I admit that a present readiness may be waived, and in some cases wholly omitted, but mere absence of the party, said to be in fault, is not such a case, though he had agreed to be present. There is no such rule of law, nor an adjudged case to support it, and to adopt such a rule would be found in practice equally unjust and impolitic, and would open a door for all sorts of experiments and tricks. Suppose, when the plaintiff called on the defendant, he had found him at home, but the defendant would not say one word to him, thinking perhaps the plaintiff was trying a device. Would that which the plaintiff supposes he has proved in this case, have supported his averment of readiness? certainly not. But mere absence makes the case' no stronger, and I cannot readily see how a wilful absence varies it. I have understood the law to be, that the absence of the promisee, from the place where the contract is to be performed, is no waiver of the duty of the other party, to be there, presently ready to perform whatever he can do, or could have done, in the circumstances. And if he is not there, he can claim nothing for the default of the other. So are the authorities.

Judgment for the plaintiff.


source: Caselaw Access Project

author: BERDON, J.

license: Public Domain

text:
    DOMESTIC VIOLENCE SERVICES OF GREATER NEW HAVEN, INC. v. FREEDOM OF INFORMATION COMMISSION ET AL.
    (15407)
    Callahan, C. J., and Berdon, Norcott, Palmer and Peters, Js.
    Argued December 3, 1996
    officially released February 4, 1997

      Victor R. Perpetua, with whom, on the brief, was Mitchell W. Pearlman, general counsel, for the appellant (named defendant).

      Patricia E. Reilly, for the appellee (plaintiff).
   Opinion

BERDON, J.

The sole issue in this certified appeal is whether the appeal of the named defendant, the freedom of information commission (FOIC), should have been dismissed by the Appellate Court on mootness grounds. The dispute in this administrative appeal arises out of a request for corporate documents by the defendant Ellen Andrews (complainant) from the plaintiff, Domestic Violence Services of Greater New Haven, Inc. The plaintiff denied the complainant’s request for the documents on the ground that it was not a public agency within the provisions of General Statutes § 1-18a of the Freedom of Information Act (FOIA). Although the documents were voluntarily furnished to the complainant, the FOIC nonetheless proceeded with a contested hearing to determine whether the plaintiff was a public agency. After deciding that the plaintiff was a public agency, the FOIC then found that the plaintiffs voluntary disclosure had been untimely and ordered the plaintiff, in the future, to comply promptly with other disclosure requests. The plaintiff appealed to the Superior Court, which sustained the plaintiffs appeal. The FOIC then appealed the reversal of its decision to the Appellate Court, which, sua sponte, raised the issue of whether the FOIC was seeking an advisory opinion because the issue was moot. After a hearing, the Appellate Court dismissed the defendant’s appeal. We granted the FOIC’s petition for certification to appeal from the Appellate Court. We now reverse.

The undisputed facts are as follows. On December 10,1993, the complainant made a written request to the plaintiff for certain corporate documents, including its annual report, budget and bylaws. On December 15, 1993, the plaintiffs executive director refused to provide the complainant with the requested documents. On December 20, 1993, the complainant filed a complaint with the FOIC that requested it to order the disclosure. The FOIC sent a notice to the parties scheduling a hearing to be conducted on March 3, 1994. On February 28, 1994, the plaintiff voluntarily delivered the requested documents to the complainant. In a cover letter, the plaintiffs attorney stated that “this disclosure is not an admission that [the plaintiff] is a public agency, as that term is used in the [FOIA]. Rather, we freely disclose the documents requested in the hopes of avoiding a costly legal battle over this matter.”

Notwithstanding the voluntary disclosure, the FOIC proceeded with a contested hearing on March 31,1994. After the hearing, it determined that the plaintiff was a public agency pursuant to the FOIA and that, although the documents had been furnished to the complainant prior to the hearing, the documents had not been provided promptly. 6The FOIC ordered the plaintiff to comply strictly with the provisions of the FOIA in the future. The plaintiff appealed from the decision of the FOIC to the Superior Court pursuant to General Statutes §§ 1-21i (d) and 4-183 on the ground that the FOIC had improperly found that the plaintiff was a public agency. The Superior Court found that the plaintiff was not a public agency and, therefore, reversed the decision of the FOIC. Thereafter, the FOIC, pursuant to § l-21i (d), appealed the reversal of its decision to the Appellate Court, which dismissed the appeal.

The plaintiff argues that the Appellate Court properly dismissed the FOIC’s appeal as an attempt to secure an advisory opinion because the documents had already been turned over to the complainant and, therefore, no practical relief could be granted on appeal. We disagree.

The decision of the Appellate Court to dismiss this appeal as seeking an advisory opinion is predicated on mootness. “Since mootness implicates subject matter jurisdiction; Sadlowski v. Manchester, 206 Conn. 579, 583, 538 A.2d 1052 (1988); it can be raised at any stage of the proceedings. See Sobocinski v. Freedom of Information Commission, 213 Conn. 126, 134-35, 566 A.2d 703 (1989). We have consistently held that we do not render advisory opinions. If there is no longer an actual controversy in which we can afford practical relief to the parties, we must dismiss the appeal. Sadlowski v. Manchester, [supra, 583].” (Internal quotation marks omitted.) Board of Education v. New Haven, 221 Conn. 214, 216, 602 A.2d 1018 (1992). “Because courts are established to resolve actual controversies, before a claimed controversy is entitled to a resolution on the merits it must be justiciable. Justiciability requires . . . that there be an actual controversy between or among the parties to the dispute: Courts exist for determination of actual and existing controversies, and under the law of this state the courts may not be used as a vehicle to obtain judicial opinions on points of law. . . . [Wjhere the question presented is purely academic, we must refuse to entertain the appeal. . . . Hallas v. Windsor, 212 Conn. 338, 347, 562 A.2d 499 (1989). A case becomes moot when due to intervening circumstances a controversy between the parties no longer exists.” (Internal quotation marks omitted.) Crest Pontiac Cadillac, Inc. v. Hadley, 239 Conn. 437, 439 n.3, 685 A.2d 670 (1996).

General Statutes §§ 1-15 and 1-19 (a) both provide in pertinent part that requested public records must be provided promptly. Section 1-19 (a) provides that “all records maintained or kept on file by any public agency . . . shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. . . .” (Emphasis added.) Section 1-15 (a), the provision that is applicable to the complainant’s request, provides that “[a]ny person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. . . .” (Emphasis added.) General Statutes § 1-2 li (b) (1) provides in pertinent part that “[a]ny person denied the right to inspect or copy records under section 1-19 or wrongfully denied the right to attend any meeting of a public agency or denied any other right conferred by sections 1-15 [or] . . . 1-19 . . . may appeal therefrom to the [FOIC] by filing a notice of appeal with said commission. ...”

Because the complainant, at the hearing, claimed that the documents were not provided to her within a “reasonable time,” and the evidence supported her claim, the FOIC found that the plaintiff “violated §§ 1-15 and 1-19 (a) . . . when it failed to promptly provide the complainant with a copy of the [requested] records . . . ,” Indeed, the documents were not provided to the complainant until almost three months after her initial request and only three days before the scheduled FOIC hearing. Accordingly, the plaintiff was found to have violated the FOIA by failing to make available the requested documents in a prompt manner.

Furthermore, the order issued by the FOIC was prospective in nature and impacts the obligations of the plaintiff in the future with respect to disclosure requests from members of the public. The FOIC’s order in this case stated: “Henceforth, [the plaintiff] shall strictly comply with the provisions of the FOIA.” Regarding this type of order, Gifford v. Freedom of Information Commission, 227 Conn. 641, 649 n.9, 631 A.2d 252 (1993), is instructive. Gifford involved the issue of whether a chief of police had to provide a copy of an arrest report to a newspaper reporter pursuant to the FOIA. This court noted that “[t]he commission concluded in its final decision . . . that, during the pen-dency of a criminal prosecution, an arrest report must be disclosed upon request to the public pursuant to General Statutes §§ 1-15 and 1-19 (a) of the act. The commission stated that, except for the names and addresses of witnesses, such arrest reports were not exempt from disclosure and ordered [the Windsor Locks chief of police] to ‘comply with the disclosure requirements of § 1-19 (a).’ The commission also ‘cautioned] [the chief of police] to take care to comply with the law in the future or [he] may risk further consequences for [his] continuing disregard of the law.’ ” Id., 648-49. In Gifford, even though the requested document was released to the public before the FOIC’s final decision was released, we agreed with the trial court’s conclusion that the appeal was not moot. We stated that “[t]he order issued by the commission is prospective in nature and impacts the discovery obligations of the state’s attorneys in pending criminal matters.” Id., 649 n.9; see Glastonbury Education Assn. v. Freedom of Information Commission, 234 Conn. 704, 707 n.3, 663 A.2d 349 (1995) (“[e]ven though the proceedings at issue here long since have concluded, and hence there is nothing to which a remand could be directed, the appeal is not moot because of the continuing order to the plaintiffs to conduct future negotiations in accordance with the FOIC order under challenge in this appeal”); see also Board of Pardons v. Freedom of Information Commission, 210 Conn. 646, 650, 556 A.2d 1020 (1989) (board members risk criminal sanctions because noncompliance with FOIC order is class B misdemeanor). The present appeal presents the same prospective order. For this reason, and because the FOIC determined that the plaintiff had not provided the documents promptly, the controversy before the FOIC was not moot. Consequently, the appeal before the Appellate Court was not moot.

The judgment of the Appellate Court is reversed and the case is remanded to that court for further proceedings according to law.

In this opinion the other justices concurred.

       General Statutes § l-18a provides in pertinent part: “Definitions. As used in this chapter, the following words and phrases shall have the following meanings ....
      “(a) ‘Public agency’ or ‘agency’ means any executive, administrative or legislative office of the state or any political subdivision of the state and any state or town agency, any department, institution, bureau, board, commission, authority or official of the state or of any city, town, borough, municipal corporation, school district, regional district or other district or other political subdivision of the state, including any committee of, or created by, any such office, subdivision, agency, department, institution, bureau, board, commission, authority or official, and also includes any judicial office, official or body or committee thereof but only in respect to its or their administrative functions. ...”

       The FOIC, in order to make its determination, and the trial court upon review of the FOIC’s decision, relied on Connecticut Humane Society v. Freedom of Information Commission, 218 Conn. 757, 591 A.2d 395 (1991). “[W]here it is unclear whether a hybrid public/private entity falls within the definition set forth in § l-18a (a), we have interpreted the section to include within its scope an entity that is the functional equivalent of a public agency. Board of Trustees v. Freedom of Information Commission, 181 Conn. 544, 554-55, 436 A.2d 266 (1980). In determining whether an entity is the functional equivalent of a public agency, we consider the following criteria: (1) whether the entity performs a governmental function; (2) the level of government funding; (3) the extent of government involvement or regulation; and (4) whether the entity was created by the government. Id., 554; see also Hallas v. Freedom of Information Commission, 18 Conn. App. 291, 294, 557 A.2d 568 (1989).” (Internal quotation marks omitted.) Connecticut Humane Society v. Freedom of Information Commission, supra, 759-60.
      “In light of the myriad of organizational arrangements that may be confronted, under the functional equivalency approach, each new arrangement must be examined anew and in its own context. ... A case by case application of the factors noted above is best suited to ensure that the general rule of disclosure underlying this state’s FOIA is not undermined by nominal appellations which obscure functional realities. . . .All relevant factors are to be considered cumulatively, with no single factor being essential or conclusive.” (Citations omitted; internal quotation marks omitted.) Id., 760-61.
      Whether the trial court correctly concluded that the plaintiff is not the functional equivalent of a public agency is an issue to be decided by the Appellate Court on remand.

       We granted certification limited to the following question: “Under the circumstances of this case, did the Appellate Court properly dismiss the defendant’s appeal as either moot or as an attempt to secure an advisory opinion?” Domestic Violence Services of Greater New Haven, Inc. v. Freedom of Information Commission, 237 Conn. 901, 674 A.2d 1329 (1996).

       Subsequent to the voluntary disclosure, the FOIC rescheduled the contested hearing from March 3 to March 31, 1994.

       General Statutes § 1-15 provides in pertinent part: “Copies of public records, fees, (a) Any person applying in writing shall receive, promptly upon request, a plain or certified copy of any public record. The fee for any copy provided in accordance with this section and sections l-18a, 1-19, l-19b, 1-21 to l-21i, inclusive, 1-21Í and l-21k (1) by an executive, administrative or legislative office of the state, a state agency or a department, institution, bureau, board, commission, authority or official of the state, including a committee of, or created by, such an office, agency, department, institution, bureau, board, commission, authority or official, and also including any judicial office, official or body or committee thereof but only in respect to its or their administrative functions, shall not exceed twenty-five cents per page, and (2) by all other public agencies, as defined in section l-18a, shall not exceed fifty cents per page. If any copy provided in accordance with said sections requires a transcription, or if any person applies for a transcription of a public record, the fee for such transcription shall not exceed the cost thereof to the public agency. . . .” (Emphasis added.)
      General Statutes § 1-19 provides in pertinent part: “Access to public records. Exempt records, (a) Except as otherwise provided by any federal law or state statute, all records maintained or kept on file by any public agency, whether or not such records are required by any law or by any rule or regulation, shall be public records and every person shall have the right to inspect such records promptly during regular office or business hours or to receive a copy of such records in accordance with the provisions of section 1-15. Any agency rule or regulation, or part thereof, that conflicts with the provisions of this subsection or diminishes or curtails in any way the rights granted by this subsection shall be void. Each such agency shall keep and maintain all public records in its custody at its regular office or place of business in an accessible place and, if there is no such office or place of business, the public records pertaining to such agency shall be kept in the office of the clerk of the political subdivision in which such public agency is located or of the secretary of the state, as the case may be. Any certified record hereunder attested as a true copy by the clerk, chief or deputy of such agency or by such other person designated or empowered by law to so act, shall be competent evidence in any court of this state of the facts contained therein. Each such agency shall make, keep and maintain a record of the proceedings of its meetings. . . (Emphasis added.)

       General Statutes § l-21i (d) provides in pertinent part: “Any party aggrieved by the decision of said commission may appeal therefrom, in accordance with the provisions of section 4-183. . . .”

       General Statutes § 4-183 (a) provides: “A person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision may appeal to the superior court as provided in this section. The filing of a petition for reconsideration is not a prerequisite to the filing of such an appeal.”

       General Statutes § l~21i (d) provides in pertinent part: “The commission shall have standing to defend, prosecute or otherwise participate in any appeal of any of its decisions and to take an appeal from any judicial decision overturning or modifying a decision of the commission. If aggrievement is a jurisdictional prerequisite to the commission taking any such appeal, the commission shall be deemed to be aggrieved. . . .”

       The plaintiff argues that the complainant did not address the promptness issue in her FOIC complaint and, therefore, she should have amended her FOIC complaint to reflect that the requested documents had been provided to her and that she was proceeding on the basis that the documents had not been provided promptly. We disagree. The plaintiff fails to acknowledge that this situation was caused as a result of its failure to turn over the requested documents until the FOIC hearing was imminent. Furthermore, “[a]s a practical matter, the FOIA is used repeatedly by members of the public who are unschooled in technical, legalistic language distinctions. It would be unreasonable to deny a member of the public access to the FOIA simply because of arguable imperfections in the form in which a request for public records is couched.” Perkins v. Freedom of Information Commission, 228 Conn. 158, 167, 635 A.2d 783 (1993). Likewise, this reasoning applies to the complaint submitted to the FOIC.
      Nevertheless, the complainant in this case submitted a written statement at the FOIC hearing that indicated that her “request [for documents] was not [fulfilled within a reasonable time . . . .” In addition, the complainant made an opening statement at the hearing wherein she stated that her “request was not fulfilled within a reasonable time as required [under the FOIA] . . . .”

       We note that neither the record nor the briefs to this court reveal a change in circumstances subsequent, to the FOIC’s decision that indicates that, the controversy has become moot during the appellate process.


author: BORDEN, J.

text:
    DYSART CORPORATION v. SEABOARD SURETY COMPANY
    (15476)
    Callahan, C. J., and Borden, Norcott, Katz and Palmer, Js.
    Argued November 7, 1996
    officially released February 4, 1997

      Jane I. Milas, for the appellant (defendant).

      Lisa A. Magliochetti, for the appellee (plaintiff).
   Opinion

BORDEN, J.

The dispositive issue in this appeal is whether a pub that has cashed wage checks for employees of a subcontractor on a public construction project is entitled to assert a claim under a labor and material payment bond issued in connection with the project pursuant to General Statutes § 49-41 when the checks are subsequently dishonored by the subcontractor’s bank. The defendant surety on the bond, Seaboard Surety Company (Seaboard), appeals from the judgment of the trial court granting summary judgment to the plaintiff, Dysart Corporation (Dysart), the pub owner, on its claim under the payment bond for the amount of the dishonored checks. Because we conclude that, as a matter of law, Dysart is not a proper claimant under the payment bond, we reverse the judgment of the trial court.

The following facts and procedural history are undisputed. Seaboard, in connection with a middle school construction project in Montville, provided the labor and material payment bond required by General Statutes (Rev. to 1991) § 49-41 for all large-scale public works construction projects. The principal on the bond was the general contractor for the project, Suffolk Construction Company, Inc. (Suffolk). One of Suffolk’s subcontractors, Diamond Construction, Inc. (Diamond), issued the checks in question.

At all times relevant to this appeal, Dysart conducted business in Massachusetts as the Tara Pub. The sole connection Dysart had with the construction project was that Diamond’s employees were frequent customers at the Tara Pub. As a service to these customers, and to solicit and maintain their business, the Tara Pub would often cash the employees’ paychecks for them. In such instances, the Diamond employees would endorse their checks over to Dysart by blank endorsements, putting their signatures on the backs of the checks. See, e.g., J. White & R. Summers, Uniform Commercial Code (2d Ed. 1980) § 13-10.

From April 30, 1992, to June 12, 1992, Dysart cashed Diamond paychecks in the amount of $23,019 for the Diamond employees. When Dysart subsequently deposited the checks, however, they were dishonored by Diamond’s bank because Diamond’s account lacked sufficient funds. Dysart then filed a claim with Seaboard under the payment bond to collect the amount of the dishonored checks. Seaboard refused to pay Dysart’s claim.

Dysart subsequently commenced this action against Seaboard. The first count of Dysart’s complaint was a claim that Dysart is entitled to payment under the payment bond, pursuant to General Statutes (Rev. to 1991) § 49-42, as an assignee of the rights of the Diamond employees in their paychecks. The second count was a claim that Dysart has a right to make a claim under the payment bond as a holder in due course of the paychecks, pursuant to General Statutes § 42a-3-203 of the Uniform Commercial Code. In its answer, Seaboard asserted, as special defenses, that Dysart is not a proper claimant within the meaning of § 49-42, and that § 42a-3-203 is inapplicable to the present action.

Both parties moved for summary judgment. The trial court concluded that: (1) Dysart was an assignee of the payment bond rights of the Diamond employees in their paychecks and, as such, is a proper claimant under § 49-42; and (2) Dysart’s status as a holder in due course pursuant to § 42a-3-203 also entitled it to make a claim under § 49-42. Accordingly, the trial court granted Dysart’s motion for summary judgment and denied Seaboard’s cross motion. This appeal followed.

I

Seaboard first claims that the trial court improperly concluded that, by endorsing their paychecks over to Dysart, the Diamond employees assigned to Dysart their rights to make a claim under the payment bond. We agree.

We begin by noting that Dysart does not fall within the specific intended scope of protection of § 49-41. Section 49-42 (a) explicitly limits the class of claimants who may seek payment under a § 49-41 payment bond to those who have “furnished labor or material” to the bonded construction project, including “[a]ny person having [a] direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor.” Dysart does not argue that it qualifies as a claimant under the literal language of § 49-42. That is, Dysart does not allege that it has ever provided labor or materials to the construction project, or that a contractual relationship has ever existed between Dysart and any contractor or subcontractor on the construction project.

Instead, Dysart contends that the Diamond employees intended to assign, and did assign, their rights under the payment bond when they endorsed their paychecks over to Dysart. Dysart notes that the Diamond employees themselves would have had the right to assert claims under the payment bond if they personally had attempted to deposit their paychecks and those checks had been dishonored. Dysart argues, and the trial court concluded, that it should be allowed to assert the Diamond employees’ rights under the payment bond by virtue of the assignment.

Seaboard’s response to Dysart’s position is twofold. First, Seaboard argues that a right to make a claim under a payment bond cannot be assigned under § 49-41. Second, Seaboard argues that, even if such a claim can be assigned, no valid assignment was made in this case.

Dysart relies on analogy to federal law to support its position that the assignees of proper claimants are also proper claimants. Section 49-41 was “patterned after federal legislation popularly known as the Miller Act; 40 U.S.C. §§ 270a through 270d; [and] we have regularly consulted federal precedents to determine the proper scope of our statute.” Okee Industries, Inc. v. National Grange Mutual Ins. Co., 225 Conn. 367, 374, 623 A.2d 483 (1993); see also American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 223-24, 384 A.2d 378 (1978). It is true that in the context of the Miller Act, the United States Supreme Court has held that an assignee of the claims of persons furnishing labor or materials on a bonded project is within the protection of the statutory bond, even if the assignee itself did not furnish labor or materials. United States v. Carter, 353 U.S. 210, 218-19, 77 S. Ct. 793, 1 L. Ed. 2d 776 (1957). We need not determine, however, whether assignees of proper payment bond claimants are also protected under our payment bond statute because we conclude that the Diamond employees cannot be deemed to have assigned their rights under the payment bond to Dysart.

It is undisputed that thirty-two of Diamond’s employees negotiated by blank endorsement a total of thirty-nine checks to Dysart. The negotiation of the checks to Dysart in exchange for cash unquestionably gave Dysart the rights of a holder in due course of a negotiable instrument. See General Statutes §§ 42a-3-203, 42a-3-302 and 42a-3-305. The question is whether the mere endorsement and delivery of the checks was sufficient to assign to Dysart the Diamond employees’ separate and distinct rights to bring suit under the payment bond in the event that the checks were later dishonored. Assuming, without deciding, that these rights are assignable, we conclude that no such assignment was made in this case.

We first note that the mere negotiation of the checks themselves to Dysart, with nothing more, did not operate as a legal assignment of the employees’ separate payment bond rights. “Generally, to constitute an assignment there must be a purpose to assign or transfer the whole or a part of some particular thing, debt, or chose in action, and the subject matter of the assignment must be described with such particularity as to render it capable of identification.” 6A C.J.S. 659, Assignments § 46 (1975); cf. Windsor Cement Co. v. Thompson, 86 Conn. 511, 513, 86 A. 1 (1913) (holding that transfer of bill of exchange not assignment of debt or chose in action where nothing in document or factual circumstances surrounding transfer indicated intention to assign). In this case, at the time of the transfer of the checks, there was no objective manifestation by the Diamond employees or Dysart that the employees were assigning to Dysart any rights they may have possessed in the payment bond. The subject matter of the purported assignment was not “described with such particularity as to render it capable of identification.” 6A C.J.S., supra, 659. Although case law addressing this issue is scarce, we have found no authority that persuades us that the endorsement and delivery of a check transfers, as a matter of law, anything other than a right to payment from the drawer of the instrument and certain rights against the endorser.

The question, therefore, becomes whether, when the Diamond employees endorsed their paychecks to Dysart, their payment bond rights can be considered to have been transferred to Dysart pursuant to principles of equity. In support of this theory, Dysart emphasizes the remedial purpose of § 49-41, and urges that this remedial purpose is served by allowing it to “step into the shoes” of the Diamond employees and permitting it to assert those employees’ rights against Seaboard. We agree with Dysart that § 49-41 is remedial legislation; Herbert S. Newman & Partners v. CFC Construction Ltd. Partnership, 236 Conn. 750, 757, 674 A.2d 1313 (1996); and that remedial statutes should be construed liberally in favor of those whom the law is intended to protect. A recitation of this general principle, however, merely begs the question of whom the legislation is, in fact, intended to protect. Cagiva North America, Inc. v. Schenk, 239 Conn. 1, 14, 680 A.2d 964 (1996).

We have held that the payment bond required by § 49-41 is intended to protect “workers and materials suppliers on public works projects who cannot avail themselves of otherwise available remedies such as mechanic’s liens. See Okee Industries, Inc. v. National Grange Mutual Ins. Co., [supra, 225 Conn. 373]; Nor’easter Group, Inc. v. Colossale Concrete, Inc., 207 Conn. 468, 477-79, 542 A.2d 692 (1988); Pelton & King, Inc. v. Bethlehem, 109 Conn. 547, 556, 147 A. 144 (1929).” Herbert S. Newman & Partners v. CFC Construction Ltd. Partnership, supra, 236 Conn. 757. Section 49-42 provides that such workers and suppliers may bring suit under the payment bond if full payment is not received. See footnote 3. The right of action under a payment bond is statutorily limited under § 49-42 (a) to those having a direct contractual relationship with a project contractor or subcontractor in order to “prevent the imposition of unlimited liability upon the prime contractor and his surety.” American Masons’ Supply Co. v. F. W. Brown Co., supra, 174 Conn. 227.

This limiting principle stems from the need of every general contractor to protect itself against excessively remote and, from its perspective, undetermined claims. Id. The general contractor and surety must be able to limit their liability by having a clearly delineated circle of inquiry. The present case illustrates the practical import of this principle. If the Diamond employees had themselves deposited their paychecks, then Suffolk undoubtedly would have discovered the problem with Diamond’s finances quickly, after the first employee complained about his or her dishonored check. Suffolk could then have taken action to halt Diamond’s work on the project, or at least have withheld the subcontract retainage pending any claims against the bond based on the bad checks, thereby limiting both its own and Seaboard’s potential liability. As events actually transpired, however, Dysart accumulated the checks for over one and one-half months before attempting to deposit any of them. Suffolk, therefore, had no notice of, and no way of knowing about, Diamond’s financial problems before it released the retainage and paid Diamond for its work. Accordingly, we see no compelling reason to invoke equity in this case.

Indeed, the Washington Supreme Court has concluded, as a general rule, that equity should not be invoked to allow a person to whom a check has been negotiated to bring suit under a public works payment bond, due to the particular nature of a check. National Market Co. v. Maryland Casualty Co., 100 Wash. 370, 381, 174 P. 479 (1918). The court acknowledged that “the assignment of [a] debt” will be construed as an equitable assignment and “will carry with it the security.” Id., 380. The court noted, however, that, under Washington law, the endorsement and delivery of a check was not an assignment of debt. The court first explained that “[t]he ordinary bank check is not, either in law or in equity, an assignment of the fund upon which it is drawn . . . but is purely and simply an order for the payment of money, which in no wise affects the debt for which it is given until the order is paid . . . .” (Citation omitted.) Id. The court then explained that, because a check is only an order, the endorsement and delivery of a check could not be considered the assignment of a debt. Id. Accordingly, “the equitable doctrine that the assignment of debt will carry with it the security . . . cannot be applied here because there was no assignment of debt . . . .’’Id. The court concluded that the only rights that an endorsee of a check receives are those that arise by law when any negotiable instrument is endorsed. Id., 380-81.

We find the reasoning of the Washington Supreme Court in National Market Co. persuasive and applicable to the present case, and thus conclude that the mere endorsement of a check does not constitute an equitable assignment of any right in an underlying payment bond. It is true that the assignment of a debt in Connecticut may also entail a concomitant equitable assignment of any security for that debt. See Roth v. Stein, 100 Conn. 668, 677, 124 A. 546 (1924); Lemmon v. Strong, 59 Conn. 448, 454, 22 A. 293 (1890). Under Connecticut law, however, a check is only an order for the payment of money, not an assignment of any particular funds. General Statutes § 42a-3-408; see Bassett v. City Bank & Trust Co., 115 Conn. 1, 22, 160 A. 60 (1932). Moreover, Connecticut statutes specifically limit the scope of the check instrument and the effect of an endorsement. See General Statutes §§ 42a-3-408, 42a-3-415 and 42a-3-416.

Thus, under Connecticut law the endorsement in blank of a check does not carry with it an assignment of any debt for which the check may have been issued. We see no reason to invoke equity and expand the effect of an endorsement of a check beyond what the statutes explicitly provide for, especially in the present context, where, as previously discussed, policy concerns mandate circumscribing the class of potential payment bond claimants. Accordingly, we conclude that the endorsement of the checks in this case did not serve as either a legal or equitable assignment of the employees’ rights under the payment bond.

II

Seaboard’s second claim is that the trial court improperly concluded that § 42a-3-203 entitles Dysart, as a holder in due course, to make a claim against the payment bond issued by Seaboard. We agree.

Section 42a-3-203 (b) provides that “[transfer of an instrument . . . vests in the transferee . . . any right as a holder in due course . . . .” Section 42a-3-203 has no relevance, however, to Dysart’s claim regarding the statutory payment bond. Dysart’s status as a holder in due course simply means that it holds the checks in question free from certain claims and defenses of the drawer of the check. See General Statutes §§ 42a-3-305 and 42a-3-306; see also J. White & R. Summers, supra, §§ 14-9, 14-10. The fact that Dysart is not subject to these specified defenses does not give it any affirmative rights concerning the payment bond. Being a holder in due course, in and of itself, does not give rise to an action under a surety bond pursuant to § 49-42.

III

For the reasons stated previously, we conclude, as a matter of law, that Dysart is not a proper claimant under the payment bond. Accordingly, we conclude that the trial court improperly rendered summary judgment for Dysart. Furthermore, because, as a matter of law, Dysart is unable to maintain a claim under the bond, we conclude that the trial court should have rendered summary judgment for Seaboard.

The judgment is reversed and the case is remanded with direction to deny Dysart’s motion for summary judgment and to grant Seaboard’s motion for summary judgment.

In this opinion the other justices concurred.

       Seaboard appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 4023 and General Statutes § 51-199 (c).

       The revision of the statute in effect on the date the bond was issued, April 30, 1991, is controlling. American Masons’ Supply Co. v. F. W. Brown Co., 174 Conn. 219, 225, 384 A.2d 378 (1978).
      General Statutes (Rev. to 1991) § 49-41 provides: “Public structures. Bonds for protection of employees and materialmen, (a) Before any contract exceeding twenty-five thousand dollars in amount for the construction, alteration or repair of any public building or public work of the state or of any subdivision thereof is awarded to any person, except a design professional, as defined in section 4b-55, that person shall furnish to the state or the subdivision a bond in the amount of the contract, which shall be binding upon the award of the contract to that person, with a surety or sureties satisfactory to the officer awarding the contract, for the protection of persons supplying labor or materials in the prosecution of the work provided for in the contract for the use of each such person, provided no bond shall be required to be furnished in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than twenty-five thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars.
      “(b) Nothing in this section or sections 49-41a to 49-43, inclusive, shall be construed to limit the authority of any contracting officer to require a performance bond or other security in addition to the bond herein referred to, except that no such officer shall require a performance bond in relation to any general bid in which the total estimated cost of labor and materials under the contract with respect to which such general bid is submitted is less than twenty-five thousand dollars or in relation to any sub-bid in which the total estimated cost of labor and materials under the contract with respect to which such sub-bid is submitted is less than fifty thousand dollars. ”
      Hereinafter, all references to § 49-41 are to the 1991 revision of the statute.

       General Statutes (Rev. to 1991) § 49-42 provides in relevant part: “Enforcement of right to payment on bond. Suit on bond, procedure and judgment, (a) Every person who has furnished labor or material in the prosecution of the work provided for in such contract in respect of which a payment bond is furnished under the provisions of section 49-41 and who has not been paid in full therefor before the expiration of a period of ninety days after the day on which the last of the labor was done or performed by him or material was furnished or supplied by him for which the claim is made, may enforce his right to payment under the bond by serving a notice of claim within one hundred eighty days after the date on which he performed the last of the labor or furnished the last of the material for which the claim is made, on the surety that issued the bond and a copy of the notice on the contractor named as principal in the bond. . . . Any person having direct contractual relationship with a subcontractor but no contractual relationship express or implied with the contractor furnishing the payment bond shall have a right of action upon the payment bond upon giving written notice of claim as provided in this section. . . .”
      Hereinafter, all references to § 49-42 are to the 1991 revision of the statute.

       General Statutes § 42a-3-203 provides: “Transfer of an instrument. Rights acquired by transfer, (a) An instrument is transferred when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.
      “(b) Transfer of an instrument, whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument, including any right as a holder in due course, but the transferee cannot acquire rights of a holder in due course by a transfer, directly or indirectly, from a holder in due course if the transferee engaged in fraud or illegality affecting the instrument.
      “(c) Unless otherwise agreed, if an instrument is transferred for value and the transferee does not become a holder because of lack of endorsement by the transferor, the transferee has a specifically enforceable right to the unqualified endorsement of the transferor, but negotiation of the instrument does not occur until the endorsement is made.
      “(d) If a transferor purports to transfer less than the entire instrument, negotiation of the instrument does not occur. The transferee obtains no rights under this article and has only the rights of a partial assignee.”

       The remaining claims in Dysart’s complaint alleged that Seaboard’s denial of liability had no basis in law or fact, and that the denial constituted a violation of the Connecticut Unfair Trade Practices Act. See General Statutes § 42-110a et seq. Because we conclude that Seaboard is not liable under the facts of this case, Dysart’s remaining claims necessarily fail.

       In connection with this argument, Dysart obtained affidavits from nineteen of the thirty-two Diamond employees for whom it had cashed checks, in which those employees stated that, in endorsing their checks over to Dysart, they had at the time intended to “transfer all of [their] rights to payment under this instrument, to Dysart.” Furthermore, Dysart obtained forms from twenty-three of the Diamond employees for whom it had cashed checks that purported presently to assign to Dysart all of the employee’s “rights to collect, sue and otherwise fully prosecute any and all claims

       The affidavits subsequently signed by the Diamond employees stating that they had intended, back at the time of endorsement, to transfer to Dysart all of their security rights under the checks; see footnote 6; are irrelevant. The test for an assignment revolves around the indicia of intent present a t the time of the assignment. Cf. Windsor Cement Co. v. Thompson, supra, 86 Conn. 513.
      Moreover, we conclude that the “assignment” forms that Dysart subsequently received from several of the employees, in which the employees granted Dysart their present “rights to collect, sue and otherwise fully prosecute any and all claims”; see footnote 6; were incapable of conveying anything to Dysart. This is because once the Diamond employees endorsed and delivered their checks to Dysart in exchange for cash, and in the absence of any recovery back from them by Dysart for the dishonored checks, the employees themselves had no right to recover under the payment bond with regard to those checks. At that point, the employees could not claim to be persons who had “not been paid in full” for their services within the meaning of § 49-42. See footnote 3.

       The South Dakota Supreme Court, however, has held that a person to whom a check has been negotiated may maintain an action under a public works surety bond. Finch v. Enke, 54 S.D. 164, 166, 222 N.W. 657 (1929). The court in Finch agreed with the general principle that the endorsement of a check did not legally carry with it any payment rights under a surety bond, but concluded that the endorsement did constitute an equitable assignment that allowed the endorsee to assert a claim under the surety bond. Id., 169. “When appellants became [endorsees of such checks, they became assignees of a valid, equitable assignment from the payees of such checks; this equitable assignment transferred to appellants the rights of the payees to have their claims paid, if need be, by [the surety] who had guaranteed their payment.” Id.
      A Texas appellate court also recently concluded that the right to make a claim under a payment bond is transferred when employees on a public construction project endorse their paychecks over to third parties. J.W.D., Inc. v. Federal Ins. Co., 806 S.W.2d 327, 332 (Tex. App. 1991). The court did so, however, based largely upon a provision of the Texas codification of the Uniform Commercial Code that specifies that “ ‘[u]nless otherwise agreed where an instrument is taken for an underlying obligation . . . the obligation is suspended pro tanto until the instrument is due or if it is payable on demand until its presentment. If the instrument is dishonored action may be maintained on either the instrument, or the obligation.’ [Tex. Bus. & Com. Code Ann. § 3.802 (a) (1968 & Supp. 1991)] (emphasis added). The official comment to section 3.802 makes it clear that any holder, not limited to the payee, of such an instrument is entitled to maintain an action on the underlying obligation . . . .” (Emphasis in original.) Id., 329. We need not consider the merits of this analysis, as an identical provision was deleted from Connecticut’s version of the Uniform Commercial Code in 1991, before the transfers involved in the present case. Accordingly, J.W.D., Inc., is of limited persuasive value.

       General Statutes § 42a-3-408 provides: “Drawee not liable on unaccepted draft. A check or other draft does not of itself operate as an assignment of funds in the hands of tlie drawee available for its payment, and the drawee is not liable on the instrument until the drawee accepts it.”

       General Statutes § 42a-3-415 provides in relevant part: “Obligation of endorser, (a) Subject to [certain exceptions] if an instrument is dishonored, an endorser is obliged to pay the amount due on the instrument (i) according to the terms of the instrument at the time it was endorsed, or (ii) if the endorser endorsed an incomplete instrument, according to its terms when completed, to the extent stated in sections 42a-3-115 and 42a-3-407. The obligation of the endorser is owed to a person entitled to enforce the instrument or to a subsequent endorser who paid the instrument under this section. . . .”
      General Statutes § 42a-3-416 provides: “Transfer warranties, (a) A person who transfers an instrument for consideration warrants to the transferee and, if the transfer is by endorsement, to any subsequent transferee that: (1) The warrantor is a person entitled to enforce the instrument; (2) all signatures on the instrument are authentic and authorized; (3) the instrument has not been altered; (4) the instrument is not subject to a defense or claim in recoupment of any party which can be asserted against the warrantor; and (5) the warrantor has no knowledge of any insolvency proceeding commenced with respect to the maker or acceptor or, in the case of an unaccepted draft, the drawer.
      “(b) A person to whom the warranties under subsection (a) are made and who took the instrument in good faith may recover from the warrantor as damages for breach of warranty an amount equal to the loss suffered as a result of the breach, but not more than the amount of the instrument plus expenses and loss of interest incurred as a result of the breach.
      “(c) The warranties stated in subsection (a) cannot be disclaimed with respect to checks. Unless notice of a claim for breach of warranty is given to the warrantor within thirty days after the claimant has reason to know of the breach and the identity of the warrantor, the liability of the warrantor under subsection (b) is discharged to the extent of any loss caused by the delay in giving notice of the claim.
      “(d) A cause of action for breach of warranty under this section accrues when the claimant has reason to know of the breach.”
      See footnote 9 for the text of General Statutes § 42a-3-408.

       The federal cases cited by Dysart to support its recovery are inapposite because they involve the transfer of payment bond claims by means other than the endorsement of a check. United States Fidelity & Guaranty Co. v. United States ex rel. Bartlett, 231 U.S. 237, 243, 34 S. Ct. 88, 58 L. Ed. 200 (1913) (preexisting contractual arrangement between general contractor and third party that third party could collect on workers’ paychecks directly from general contractor); Title Guaranty & Trust Co. v. Crane Co., 219 U.S. 24, 35, 31 S. Ct. 140, 55 L. Ed. 72 (1910) (stating proposition that assignment of payment bond claim does not affect remedy under bond); United States, Use of Jackson Ornamental Iron & Bronze Works v. Brent, 236 F. 771, 777 (W.D.S.C. 1916) (payment bond claim transferred through bankruptcy sale); United States, Use of Fidelity National Bank v. Rundle, 100 F. 400, 403 (9th Cir. 1900) (assignment of payment bond claim does not affect remedy under bond). These eases all assume that a payment bond claim has been assigned, and merely provide that such an assignment does not prevent an assignee from recovering. Because we conclude that the endorsement of a check does not, as a matter of law, constitute either a legal or an equil able assignment of an underlying payment bond claim, these cases do not support Dysart’s position in this appeal.

       See footnote 4.

       We have already concluded in part I of this opinion that the transferee’s right under § 42a-3-203 (b) “to enforce the instrument” does not entail a claim against a surety under a payment bond, where the instrument is a bank check and the transfer is by blank endorsement.

       General Statutes § 42a-3-305 provides: “Defenses and claims in recoupment. (a) Except as stated in subsection (b), the right to enforce the obligation of a party to pay an instrument is subject to the following:
      “(1) A defense of the obligor based on (i) infancy of the obligor to the extent it is a defense to a simple contract, (ii) duress, lack of legal capacity, or illegality of the transaction which, under other law, nullifies the obligation of the obligor, (iii) fraud that induced the obligor to sign the instrument with neither knowledge nor reasonable opportunity to learn of its character or its essential terms, or (iv) discharge of the obligor in insolvency proceedings;
      “(2) A defense of the obligor stated in another section of this article or a defense of the obligor that would be available if the person entitled to enforce the instrument were enforcing a right to payment under a simple contract; and

        “(3) A claim in recoupment oí the obligor against the original payee of the instrument if the claim arose from the transaction that gave rise to the instrument; but the claim of the obligor may be asserted against a transferee of the instrument only to reduce the amount owing on the instrument at the time the action is brought.
      “(b) The right of a holder in due course to enforce the obligation of a party to pay the instrument is subject to defenses of the obligor stated in subsection (a) (1), but is not subject to defenses of the obligor stated in subsection (a) (2) or claims in recoupment stated in subsection (a) (3) against a person other than the holder.
      “(c) Except as stated in subsection (d), in an action to enforce the obligation of a party to pay the instrument, the obligor may not assert against the person entitled to enforce the instrument a defense, claim in recoupment, or claim to the instrument, as provided in section 42a-3-306, of another person, but the other person’s claim to the instrument may be asserted by the obligor if the other person is joined in the action and personally asserts the claim against the person entitled to enforce the instrument. An obligor is not obliged to pay the instrument if the person seeking enforcement of the instrument does not have rights of a holder in due course and the obligor proves that the instrument is a lost or stolen instrument.
      “(d) In an action to enforce the obligation of an accommodation party to pay an instrument, the accommodation party may assert against the person entitled to enforce the instrument any defense or claim in recoupment under subsection (a) that the accommodated party could assert against the person entitled to enforce the instrument, except the defenses of discharge in insolvency proceedings, infancy and lack of legal capacity.”

       General Statutes § 42a-3-306 provides: “Claims to an instrument. A person taking an instrument, other than a person having rights of a holder in due course, is subject to a claim of a property or possessory right in the instrument or its proceeds, including a claim to rescind a negotiation and to recover the instrument or its proceeds. A person having rights of a holder in due course takes free of the claim to the instrument.”

       The case relied upon by the trial court in reaching its opposite conclusion, Okee Industries, Inc. v. National Grange Mutual Ins. Co., supra, 225 Conn. 367, is not relevant to this issue. Okee Industries, Inc., involved the issue of whether a subcontractor asserting a claim against a payment bond had complied with the notice requirements of § 49-42. There was no question that the subcontractor was a proper claimant. Nonetheless, the trial court found support for Dysart’s position in dicta in Okee Industries, Inc., that “the legislature has recently adopted revisions to article 3 of the Uniform Commercial Code designed to limit the ability of a surety, in the absence of a showing of prejudice, to avoid paying its obligations under the bond by relying on insubstantial deviations from the contractual relationships between the underlying parties.” Id., 377. That passage goes on to note, however, that “article 3 governs only those suretyship transactions that arise in the context of parties to a negotiable instrument; see General Statutes § 42a-3-102 . . . .” Id. It is undisputed in the present case that Seaboard is not a party to the checks in question.
      Indeed, Dysart, in its appellate brief, essentially concedes the weakness of its § 42a-3-203 claim by ignoring Okee Industries, Inc., and the trial court’s logic altogether. Dysart instead, without citation to any authority, essentially recasts its § 42a-3-203 claim into another assignment claim, arguing that “ [a]s a st atutory transferee [under § 42a-3-203] Dysart stepped into the shoes of the various laborers and acquired standing to make a claim pursuant to [Seaboard’s] statutory bond.”