6 Conn. Cir. Ct. 148 | Conn. App. Ct. | 1969
These two causes of action were brought on separate complaints presenting the same issues of law and alleging some basically identical facts. They were tried together by agreement of the parties and order of the court. From a judgment for the defendant in each ease the plaintiff has appealed. The appeals have been combined, and therefore only one opinion of this court will suffice for the disposition of both cases. Practice Book § 606; Maltbie, Conn. App. Proc. § 124.
Upon adequate and sufficient evidence, the court found the following facts, which are not subject to any corrections which would materially affect the judgment reached. Armand Beauear is the duly appointed executor of the estate of Hubert A. Pons. In January, 1966, Pons was the duly appointed conservator of his wife, Mary A. Pons, who was incompetent and confined to a convalescent home. Prior to January, 1966, and continuing to the date of his death, Hubert A. Pons was the joint owner of a bank account in the Bristol Federal Savings and Loan Association, passbook No. S5103, and of another such account in the Bristol Savings Bank, passbook No. 61484. Both accounts were in survivorship with his wife, Mary A. Pons. On January 27,1966, Hubert A. Pons was admitted to the Bristol Hospital on an emergency basis. He was then eighty-four years of
The trial court could credit the expert testimony of Dr. Nicholas J. Seguljie, who had attended Hubert A. Pons as his personal physician for several years and treated him during his confinement at the Bristol Hospital, that on January 31,1966, Pons was confused, incompetent, unable to manage his own affairs and not in his right mind to make a decision.
Armand Beauear delivered the executed powers of attorney to his sister, Dorothy F. Beauear, approximately one week after they were signed. Dorothy F. Beauear placed the powers of attorney in a metal box which she kept in her home. Shortly before November 3,1966, Dorothy F. Beauear caused photostat copies of the powers of attorney to be made at her place of employment. On the evening of November 3, 1966, Dorothy F. Beauear, accompanied by Raymond Beauear, presented Bristol Savings Bank passbook No. 61484 to a teller together with a copy of the power of attorney and requested
After leaving the Bristol Savings Bank, Dorothy F. Beauear, accompanied by Raymond Beauear, proceeded to the Bristol Federal Savings and Loan Association, where she presented Bristol Federal Savings and Loan Association passbook No. S5103 to a teller together with a copy of the power of attorney and requested the withdrawal of the sum of $5508.07 from the account. She did not sign a written withdrawal slip as required by bank rules. Bristol Federal Savings and Loan Association passbook No. S5103 indicated a joint account in survivor-ship in the names of Hubert A. Pons and his wife, Mary A. Pons. The teller of the Bristol Federal Savings and Loan Association, after conferring with a bank officer, told Dorothy F. Beauear that no withdrawal could be made until legal advice could be secured by the bank. Dorothy F. Beauear left the bank and made no further effort to withdraw these funds.
Hubert A. Pons died on November 18, 1966. The defendant banks were first notified of the plaintiff’s claims through letters signed by his attorney on September 13, 1967. Pons left a will in which Armand Beauear, Raymond Beauear and Dorothy F. Beauear were named as beneficiaries.
In his assignments of error, the plaintiff claims that the court erred in its failure to correct the finding as requested by him, in reaching the conclusions stated, and in rendering judgment for the defendant in each case when the conclusions arrived at by the court do not support it. The first assignment, claiming errors apparent on the face of the record, we disregard. The plaintiff has failed to follow the procedure set out in Practice Book § 959. Furthermore, the assignment avers a question of law which can only be determined on the facts as found after trial and cannot be decided by a mere examination of the pleadings and the actions taken or the rulings made by the trial court in advance of trial. See, e.g., State v. Sul, 146 Conn. 78, 83.
In considering whether the court erred in failing to correct the finding in accordance with the plaintiff’s motion to correct, we cannot overlook the irregular procedure followed by the plaintiff. As
The initial ground of appeal is that the court erred in refusing to correct the finding by including facts claimed by the plaintiff to have been admitted or undisputed and by striking paragraphs claimed to be facts found without evidence. Corrections of findings may not be made on the first ground unless it is clearly established that the fact claimed was admitted or undisputed. “That a witness testified to a fact without direct contradiction is not of itself sufficient; the trial court must be the judge of the credit to be given to a witness.” Practice Book § 628 (a); State v. Coulombe, 143 Conn. 604, 609; Trenchard v. Trenchard, 141 Conn. 627, 631; Armstrong v. Watrous, 138 Conn. 127, 128.
The second claim of error is addressed to the conclusions of the court. The court could reasonably reach those conclusions on the basis of the applicable law and the subordinate facts found. The court was not in error in denying the motion to strike the paragraphs attacked.
The facts which the plaintiff seeks to have added to the finding are supported solely by hearsay testimony. They are based on alleged conversations of the plaintiff’s decedent with his niece, Dorothy P.
The plaintiff also seeks corrections in the finding by adding ultimate conclusions of fact to the subordinate facts found. A finding that Dorothy F. Beau-car had “apparent authority” to withdraw funds from the two savings accounts is not an admitted or undisputed fact. It is an important issue of law on this appeal. The conclusions of the trial court are only reviewable to the extent of determining whether they are a proper deduction from the subordinate facts. Maltbie, Conn. App. Proe. §§ 165, 166. The Appellate Division cannot properly find conclusions from subordinate facts and add them to the finding as admitted or undisputed facts. See Practice Book § 985. We cannot find that the trial court abused its discretion in declining to correct the finding by adding the asserted facts as requested.
The plaintiff attacks all the conclusions reached by the court in its finding on the ground that the subordinate facts found do not support them. Among the reasons given for this assignment which are specific enough to require our consideration are: (1) There was no testimony by either defendant as to Hubert Pons’s competency on any date other than January 31, 1966; (2) the banks had a duty to pay
The plaintiff adopts the position that under General Statutes § 42a-4-405 (1) of our Uniform Commercial Code,
Although there have been no adjudicated cases in Connecticut, on the precise issues raised here, since the adoption of the Uniform Commercial Code in 1959, our Supreme Court in 1966 expressed itself on at least one point essential to the resolution of this case, that is, the relationship between the depositor and a mutual savings institution. It is not simply that of debtor and creditor, as the plaintiff contends. In State v. Vars, 154 Conn. 255, 262, the Supreme Court said: “With respect to the possessory interest retained by a depositor in a mutual savings institution, it is pertinent to note that, although deposits in an ordinary commercial bank create the relation of debtor and creditor between the bank and the depositor, and the money deposited becomes the property of the bank, which holds it not as the agent but as the debtor of the depositor, a different relation is created by a deposit in a mutual savings institution. Like savings banks, savings and loan associations are incorporated agencies without capital stock. Each is organized ‘to accumulate the savings of its members and invest the same in mortgages, loans and
The principal question raised is whether Dorothy Beaucar had authority to withdraw moneys from the defendant banks on November 3, 1966. The trial court concluded that no such authority or agency had been granted her by Hubert A. Pons, because of his incompetence. The court also concluded that the plaintiff had failed to sustain his burden of proving that she had such authority. These conclusions are to be tested by the subordinate facts found by the court, and not by the evidence. We do not retry facts. Faiola v. Faiola, 156 Conn. 12, 15. A finding of agency or lack of agency is a question of fact which must stand if supported by the subordinate facts found. Cyclone Fence Co. v. McAviney, 121 Conn. 656, 661; Greenberg v. Lotz Asbestos Co., 109 Conn. 441, 450.
The burden of proving an agency relationship was on the plaintiff. Iodice v. Rusnak, 143 Conn. 244, 247. The plaintiff also had the burden of proving the nature and extent of the alleged agency relationship. 3 Am. Jur. 2d, Agency, § 348. A person who is not in a mental condition to contract and conduct his
The evidence and the inferences which1 could fairly be drawn therefrom supported the court’s finding that the plaintiff’s decedent was incompetent to execute a valid power of attorney on January 31,1966. An examination of the document shows a signature which is vague, wavering, and totally unlike the signature of Pons as known to the banks from past transactions and their own records. That, in itself, was enough to put the defendants on notice that due care required further investigation by them before parting with the depositor’s money. Boardman. v. Connecticut Savings Bank, 133 Conn. 396, 401.
There was no evidence tending to show that the plaintiffs decedent had regained his competence subsequent to January 31, 1966, or ever took any action to ratify his signing of the document on that date. Unless Pons did recover from his lack of competence, it would be impossible for him to appoint Dorothy F. Beaucar as his attorney in fact, since he lacked capacity to appoint an agent. For Pons to ratify •the act of appointing Dorothy F. Beaucar as his attorney in fact after January 31,1966, it would have been necessary for him to use the same mode or form as was required to confer authority in the first place. 3 Am. Jur. 2d, Agency, § 163. The testimony concerning purported instructions of Pons on October 3, 1966, for Dorothy F. Beaucar to withdraw the money from the deposits in the defendant banks, even if believed, would have been insufficient for that purpose. 3 Am. Jur. 2d, Agency, §§ 31, 34.
The defendants in their special defense made the claim that, if valid, the power of attorney was re
The trial court determined that there was an unreasonable delay in waiting for nine months before the power of attorney was presented and, therefore, there was an implied termination of it, if it was indeed valid in the first instance. We have discussed above the court’s conclusion that it was not valid at the time of execution. The claim of the plaintiff that the document was valid and that its authority continued indefinitely appears untenable. No decisions have been cited for that proposition. The trial court concluded that the plaintiff had failed to sustain his burden of proving that assertion, and, under the circumstances appearing in evidence, that conclusion cannot be disturbed.
The suggestion of the plaintiff that even if Dorothy F. Beaucar had no express authority she had
There is no error.
In this opinion Dearington and Kinmonth, Js., concurred.
“See. 42a-4'405. death or incompetence op customer. (1) A payor or collecting bank’s authority to accept, pay or collect an item or to account for proceeds of its collection if otherwise effective is not rendered ineffective by incompetence of a customer of either bank existing at the time the item is issued or its collection is undertaken if the bank does not know of an adjudication of incompetence. Neither death nor incompetence of a customer revokes such authority to aeeept, pay, collect or account until the bank knows of the fact of death or an adjudication of incompetence and has reasonable opportunity to act on it.”