184 Conn. 109 (1981) | Cited 60 times | Supreme Court of Connecticut | May 5, 1981

The plaintiff brought this actionseeking to recover the value of servicesperformed pursuant to an oral agreement and for abreach of an oral agreement with the defendant.From the judgment rendered in favor of thedefendant, the plaintiff has appealed.

The trial court could have reasonably found thefollowing: The plaintiff is a highly respectedarchitectural photographer, and the defendant is ahighly regarded architect. At the time of thislawsuit the two had known and intermittentlyworked with each other for twenty-five years.

Prior to 1976, the defendant had designed therenovation of unused factories and loft space intocommercial space in Bridgeport. In the spring of1976, the two parties met in the defendant'soffice in New Canaan. During the meeting, thedefendant's work in Bridgeport was discussed. Theparties became enthusiastic about the potentiality

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     of publicizing the defendant's revitalization efforts inBridgeport. The two agreed to work together in atwo-part program designed to promote Bridgeport:first, by magazine publication, and, second, by anexhibition. The two parties agreed that thedefendant would try to raise funds for theproposed project from his sources in Bridgeport.1

In August of 1976, the parties met again in thedefendant's office. The plaintiff had prepared aletter dated August 17, 1976, which was read inthe office, and which began with a description ofa two-part proposal concerning (1) a feature onBridgeport in the December, 1976, "revitalizationissue" of Architectural Record and (2) a"revitalization of Bridgeport" exhibit. The letterconcluded by stating that the plaintiff's fees andcosts for the work would be $15,000. Theplaintiff testified that the defendant made noobjection to the amounts in the letter, and thatthe $15,000 was for his photographic work. Thedefendant testified that he never agreed to anyamount for photographic work. This testimony wassupported by that of his associates.

Later in August, the plaintiff told thedefendant that he needed some money in order toget the pictures and article in the ArchitecturalRecord. To ensure that publication, the defendantgave the plaintiff $3500 from his personal funds.In addition, the defendant solicited $2000 fromthe People's Savings Bank for the project, whichsum was matched by the Chamber of Commerce. Thesemonies were paid by the defendant to the plaintiffand, according to the defendant, they representedthe portion of the money allocated for the publication

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     of the article. The article, as planned, waspublished in 1976. Because additional funds couldnot be raised, the exhibition never materialized.

In a two-count complaint, the plaintiff broughtthis action seeking to recover monies from thedefendant for work done pursuant to alleged oralagreements between the parties. The first countalleged an oral agreement and sought damages forthe reasonable value of services rendered betweenMay and November, 1976. The second count allegedan oral agreement, entered into on or beforeAugust 17, 1976, and claimed that the defendantagreed to pay a certain sum for services. Thecourt found in favor of the defendant on bothcounts; the plaintiff has appealed only from thesecond count. He raises three claims on appeal,and contends that the trial court erred (1) inallowing the defendant to raise the defense ofjoint venture for the first time at trial, and inaccepting that characterization; (2) in permittingextrinsic parol evidence to contradict the termsof the parties' August 17, 1976 memorandum ofagreement; and (3) "in importing certainconditions into the defendant's unconditionalobligation to pay, and in holding that thenon-occurrence of these conditions released [the]defendant from further liability."

The plaintiff first claims that the court erredin allowing the defendant to raise the defense ofjoint venture for the first time at trial. Underthe circumstances of this case, he contends that,pursuant to Practice Book 164,2 the existence ofa joint venture must be specially pleaded, whichwas not done.

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Even assuming that, under the facts of thiscase, the characterization of the relationshipbetween the parties as a joint venture had to bespecially pleaded, and could not have been raisedunder a general denial, we note that the plaintiffnever objected at trial to the introduction ofevidence on this issue. We have repeatedly heldthat "[t]he failure to file a special defense maybe treated as waived when it appears that noobjection was raised to the offer of evidence onthe issue at the trial." Frager v. PennsylvaniaGeneral Ins. Co., 161 Conn. 472, 479, 289 A.2d 896(1971); see Alderman v. Hanover Ins. Group,155 Conn. 585, 590, 236 A.2d 462 (1967); Royal Homes,Inc. v. Dalene Hardwood Flooring Co., 151 Conn. 463,466, 199 A.2d 698 (1964); see also Mainolfi v. Brazee,135 Conn. 435, 437, 65 A.2d 261 (1949); O'Donnell v.Groton, 108 Conn. 622, 625, 144 A. 468 (1929).Accordingly, we find no error on this issue.

The plaintiff also claims that even if suchevidence were admissible, the court erred inaccepting that characterization of therelationship between the parties. The court didnot expressly find a joint venture between theparties, but rather concluded that the plaintiffdid not meet his burden of proof with regard tohis version of the agreement as alleged. Thisissue is essentially one of credibility.

We have repeatedly held that "nothing in ourlaw is more elementary than that the trier is thefinal judge of the credibility of witnesses and ofthe weight to be accorded their testimony." Smithv. Smith, 183 Conn. 121, 123, 438 A.2d 842 (1981),quoting Steinman v. Maier, 179 Conn. 574, 576,

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     427 A.2d 828 (1980). "The trier is privileged toadopt whatever testimony it reasonably believes tobe credible." Klein v. Chatfield, 166 Conn. 76,80, 347 A.2d 58 (1974); Branford Sewer Authorityv. Williams, 159 Conn. 421, 424-25, 270 A.2d 546(1970). We will not reverse the decision of thetrial court unless it is clearly erroneous inlight of the evidence and the pleadings in therecord as a whole. Practice Book 3060D; Miller v.Appleby, 183 Conn. 51, 55-56, 438 A.2d 811(1981); Pandolphe's Auto Parts, Inc. v.Manchester, 181 Conn. 217, 221, 435 A.2d 24(1980). Upon review, we find no error in thecourt's conclusion that the plaintiff failed tomeet his burden of proof with respect to hischaracterization of the agreement between theparties.

Invoking the parol evidence rule, theplaintiff's second contention is that the trialcourt erred in permitting parol evidence tocontradict the clear terms of the August 17, 1976letter between the parties. He claims that thisletter clearly and unambiguously contained all theterms of the agreement between the parties.

Under the parol evidence rule, which is a ruleof substantive law rather than a rule of evidence,"if a written contract is found to be the finalrepository of agreements made between the parties,evidence of a prior unwritten agreement would notbe allowed to have any effect on the agreement asintegrated in the writing. Harris v. Clinton,142 Conn. 204, 210, 112 A.2d 885 [1955]; Jarvis v. Cunliffe,140 Conn. 297, 299, 99 A.2d 126 [1953]; 3 Corbin, Contracts573. . . . Whether the written contract was actuallythe final repository of the oral agreements anddealings between the parties depends on their intention,

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     evidence as to which is sought in the conduct andlanguage of the parties and the surroundingcircumstances. If the evidence leads to theconclusion that the parties intended the writtencontracts to contain the whole agreement, evidenceof oral agreements is `excluded,' that is,excluded from consideration in the determinationof the rights and obligations of the litigants,even though it is admitted on the issue of theirintention. Cohn v. Dunn, 111 Conn. 342, 346,149 A. 851 ." Shelton Yacht & Cabana Club, Inc.v. Suto, 150 Conn. 251, 254-55, 188 A.2d 493(1963); Panaroni v. Johnson, 158 Conn. 92, 106,256 A.2d 246 (1969); see also Restatement(Second), Contracts 235 (Tent. Draft 1973); 9Wigmore, Evidence (3d Ed.) 2400, p. 3.

"It is well settled that the parol evidencerule does not prevent a party from usingcontemporaneous or prior negotiations orexpressions to show that the writing was neverintended to be operative . . . ." Calamari &Perillo, Contracts (2d Ed.), p. 111. ProfessorCorbin notes that in determining the issue ofwhether the parties have made a contract, "thereis no `parol evidence rule' to be applied. On[this issue], no relevant evidence, whether parolor otherwise, is excluded." 3 Corbin, Contracts573, p. 360. "When the oral testimony goesdirectly to the question whether there is awritten contract or not, it is alwayscompetent. . . ." Smith v. Dotterweich, 200 N.Y. 299,305, 93 N.E. 985 (1911); see Arnold PalmerGolf Co. v. Fuqua Industries, Inc., 541 F.2d 584,588 (6th Cir. 1976); C & N Trading Co.v. Johnstown Fur Dressing Corporation,60 Misc.2d 1012, 304 N.Y.S.2d 405 (1969).

In the present case, we initially point out that theplaintiff, in his pleadings, relied on the existence of

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     an oral agreement between the parties as his causeof action. It is also clear that the defendant, byoffering parol evidence with regard to the allegedagreement, attempted to show that the letteroffered by the plaintiff was not the contractbetween the parties, and that the terms includedin that letter had not been agreed to by him.Clearly, the court committed no error in admittingand considering such evidence.

Finally, the plaintiff claims that the courterred in importing certain conditions into thedefendant's obligation to pay, and in finding thatsince these conditions did not occur, thedefendant was released from liability. Hespecifically contends that the court's conclusionthat the plaintiff was not entitled to the full$15,000 unless the exhibit took place waserroneous.

In its memorandum of decision, the trial courtwas careful to set out the conflicting testimonyof the plaintiff and the defendant, and thereasons why it found the defendant's version ofthe agreement more credible. The court stated thatthe plaintiff was "surprisingly evasive anduncandid," and that the defendant was "the muchmore credible witness." Credibility was focal.Based on several factors, including a carefulreading of the August 17, 19763 letter, thefinding that the plaintiff padded his bill "expost facto in a most patent manner," and the"very impressive testimony" of three former associatesof the defendant, the court concluded that the

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     defendant's "version of what occurred rings muchtruer than the Damora version." It accordinglyrendered judgment for the defendant.

As discussed above, the trier is the finaljudge of the credibility of witnesses, and hisdecision will not be reversed unless it is clearlyerroneous. Upon review, we conclude that the trialcourt's decision was not clearly erroneous.

There is no error.

1. The defendant had been working with thePeople's Savings Bank in Bridgeport, the Chamberof Commerce, and others.

2. Practice Book 164 states in part: "No factsmay be proved under either a general or specialdenial except such as show that the plaintiff'sstatements of fact are untrue. Facts which areconsistent with such statements but show, notwithstanding,that he has no cause of action, must be specially alleged."

3. The

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