Mayer v. Silver , 1 Conn. App. 162 ( 1983 )

The issues raised by the defendant on appeal¹ are (1) whether the court erred in concluding that the plaintiff was a holder or a holder in due course of a promissory note,² (2) whether the court erred in concluding that the plaintiff had loaned a specific sum to the defendant and (3) whether the court erred in awarding attorney's fees to the plaintiff.³

The plaintiff's complaint alleged that the plaintiff loaned $60,000 to the defendant in August of 1977, that in April of 1979, the defendant executed a note in favor of the plaintiffs, and that, although the plaintiff demanded payment, the defendant neglected or refused to pay the amount due. A copy of the note was attached to the complaint.⁴ The defendant denied that the plaintiff had lent him money, but admitted that he had executed the note, and that it was genuine. By way of special defense, the defendant alleged that there was no consideration for the note.

The defendant claims, on appeal, that the complaint was treated as a cause of action by a holder of a promissory note instead of as an action for money had and received. The trial was conducted by both parties as an action on a promissory note and not as an action for money had and received. The transcript is replete with statements of the defendant's counsel that the plaintiff brought suit on a note, with the defense being lack of consideration for the note.

The trial court found that the plaintiff lent the defendant $60,000 in August of 1977, that the plaintiff, as a holder of the note,⁵ was entitled to recover on the note,⁶ that the note of $60,000 was given in payment of an antecedent debt, negating any necessity for the plaintiff to prove consideration for the note,⁷ and that the plaintiff was entitled to interest and attorney's fees as provided in the note. These findings and conclusions were supported by the evidence and comported with the theory of the case as tried. See Falker v. Samperi,190 Conn. 412, 427, 461 A.2d 681 (1983).

The implications of the allegations of the complaint were that the plaintiff was the holder of the note, and that she did not specifically have to allege delivery, ownership or possession of the note. Wright v. Brown,167 Conn. 464, 470-71, 356 A.2d 176 (1975). There was no material variance between the allegations and the proof which would warrant a reversal. Strimiska v. Yates, 158 Conn. 179, 183, 257 A.2d 814 (1969). The defendant was not misled or prejudiced in the maintenance of his special defense, which was lack of consideration, and, therefore, any variance is immaterial. Saphir v. Neustadt, 177 Conn. 191, 208, 413 A.2d 843 (1979).

The trial court's conclusions were reasonable and were not clearly erroneous in light of the evidence and the pleadings in the record as a whole. Kaplan v. Kaplan, 186 Conn. 387, 391-92, 441 A.2d 629 (1982).

There is no error.