Thе plaintiff, Coelm, a Connecticut partnership, brought this action to recover the balance due on the defendant’s account with the plaintiff’s predecessor in interest, Elm City Filling Stаtions, Inc. (Elmco), after Elmco assigned its accounts receivable to the plaintiff. The plaintiff appeals from the trial court’s judgment, after a court trial, for the defendant. On аppeal, it makes four claims arguing that the trial court improperly (1) precluded testimony, (2) refused to grant a continuance, (3) acted prejudicially, and (4) denied its
The facts are not in dispute. The complaint in this collection action alleges that in late 1982 Elmco delivered goods, wares, materials or merchandise valued at $116,415.55 to the defendant and that Elmcо was dissolved and its accounts receivable were assigned to the plaintiff on or about January 1, 1983. The complaint further alleges that, despite the plaintiff’s demands, the defendаnt has failed to pay all but $2300 of the amount due and owing.
At trial the plaintiff presented two witnesses. The first witness, Mary Ann Mclntire, was the bookkeeper and the person in charge of Elmco’s office. She testified that the debt owed Elmco by the defendant was $75,393.39.
The second witness, Sidney J. Horton, was the president of Elmco and a member of its board of directors before that company was dissolved. Horton testified that he was the president, but not a shareholder of Elmco, and that he had presided over that company’s dissolution in January, 1983. The defendаnt objected to Horton’s testimony at this point and argued that because Horton had not been a shareholder in Elmco, he was not qualified to testify. The court overruled this objection and allowed Horton to continue testifying.
Horton then testified that when Elmco was dissolved all of its assets were sold off, except the accounts receivable. He stated that his wife, Arnold Alderman and Alderman’s wife had formed Coelm, to which Elmco’s accounts receivable were assigned. The defendant again objected to Horton’s testimony and moved that it be stricken because Horton owned neither Elmco nor Coelm. At the court’s suggestion, the defendant rephrased his argument and objected on the ground
After a short recess the plaintiff moved for a continuance to allow it to collect certain corporate records. The defendant again objected and the court denied the plaintiff’s mоtion on the grounds that “[everybody said they were ready.”
When further questioning of Horton resulted in the same objections and the same rulings, the parties rested, and the court granted the defendant’s request for a directed verdict,
As defined by our Supreme Court, the best evidence rule forces a party to produce the original writing, if it is available, when the terms of that writing are material and must be proved. Brookfield v. Candlewood Shores Estates, Inc.,
The best evidence rule is not applicable to this case. “Where one testifies to what he has seen or heаrd, such testimony is primary evidence regardless of whether such facts are reduced to writing. While recordings might be more accurate and reliable evidence under ordinary circumstances than testimony from memory, the latter is not rendered incompetent by the fact of the existence of the former.” State v. Moynahan, 164
In the matter at hand, Horton, as president of Elmco, could testify as to corporate acts done by him, or in his presence. Such testimony would be primary evidence. Under the present circumstances, Horton’s testimony as to the dissolution of Elmco and its assignment of its accounts receivable to Coelm was competent evidence. See Royal Sundry Co. v. Railroad Salvage of Connecticut, Inc.,
The judgment is reversed and the case is remanded for a new trial.
Notes
After the defendant’s second objection, the following exсhange took place:
“Mr. Lasala: It is my point, Your Honor, that the witness as the president of the company cannot testify as to any corporation—
“The Court: Is your objection it is not the best evidence?
“Mr. Lasala: That’s correct, Your Honor.
“The Court: On that ground it is sustained.
“Mr. Winnick: Your Honor, may I be heard on that.
“The Court: You can bе heard but I very seldom change my mind.
“Mr. Winnick: I’m not sure I understand what — there was a motion to strike testimony. What portion of the testimony has been stricken?
“The Court: The last question.
“Mr. Winnick: The entire last question?
“The Court: Yes.
“Q. Mr. Horton, as president of Elm City Filling Station[s], Inc., did therе come a time when Elm City dissolved as a corporation?
“A. Yes.
“Mr. Lasala: Same objection, Your Honor.
“The Court: Mr. Horton, wait a second so that Mr. Lasala can get his objection in, okay. The same grounds, I take it.
“Mr. Lasala: Same grounds.
“The Court: Same ruling.”
The following colloquy occurred:
“Mr. Winnick: Exception, please. May I inquire as to why as the president of the corporation he cannot testify as to the—
“The Court: The court seldom answers questions. It just makes decisions.
“Mr. Winnick: Your Honor, seeking to understand the scope of the court’s ruling, is it the court’s ruling that this witness as president of the corporation cannot testify as to any of the historical events of the сorporation?
“Mr. Lasala: That’s correct. The most credible evidence in this matter, the best evidence in this matter would be a certificate of purchase, the minutes of thе corporation reflecting this and this witness not as a shareholder cannot testify to it.
“The Court: The court ruled the best evidence would be the corporation records.
“Mr. Winnick: Would be the corporation records.
“The Court: That’s what I have ruled.”
At another time the plaintiff specifically requested:
“Mr. Winnick: Thаnk you, Your Honor. The witness has testified that he served as a member of the board of directors and had personal knowledge of the acts that the board took. The best evidenсe rule is a rule of preference, not one of exclusion. It prefers proof by original documentation but will accept oral evidence if necessary. I have just quoted some language from the Handbook of Connecticut Evidence, Tait and LaPlante, page 300, Section 10.7, the first full paragraph on that page. I would submit to the court that in this instanсe the corporation documents not being here, they are not necessary. This witness has testified that he did have personal knowledge of the acts of the board. He is fully ablе to be cross-examined on any of these acts. The question as to the admissibility of this evidence is not an issue here. It would go to the weight of this evidence in light of the fact [that] there wоuld be no corroboration by the corporation documents. If Your Honor should find that he is not believable as to the acts taken, then we have — we haven’t met our burden. That shouldn’t preclude Your Honor about entertaining what acts the board of directors took and allowing the plaintiff to proceed to put on his case.
“Mr. Lasala: I stand by Your Honor’s initial ruling, the best evidence rule. The fact of the matter is there are no corporation documents here, which are the best evidence. There’s no agreement to purchase, there’s nothing here indicating assignments. This man was not a shareholder of the company. Whatever he can say is as a member of the board of directors. “The Court: I have ruled, gentlemen. Thank you.”
The court treated the “motion for directed verdict” in this court case as a motion for judgment rather than a motion to dismiss, since both parties had rested.
Paragraph one of the complaint states that the items were “bargained, sold and delivered ... to the defendant Frank Imperato, dba Frank’s Gas and Service Station.” The pleadings do not require that a relationship be shown between Frank Imperato and Frank’s Gas and Service Station.