Opinion
No. CV 05-400 62 87 S
September 8, 2005
MEMORANDUM OF DECISION
Before the court is the plaintiffs' Application for Prejudgment Remedy. On August 2, 2003, a bond was executed by the plaintiffs Marjorie Wilson and International Fidelity Insurance (Fidelity), in the amount of $150,000 for the release of the defendant, Maria Spencer's son, Fadul Farid, from jail on pending criminal charges. Wilson executed the bond after the defendant promised to indemnify the plaintiffs. On June 16, 2004, Farid failed to appear in criminal court and the bond was forfeited. On February 26, 2005, the plaintiffs served a prejudgment remedy application on the defendant. On March 21, 2005, the application was heard and was denied without prejudice. On May 10, 2005, the plaintiffs filed a second prejudgment remedy application and an amended complaint alleging breach of oral contract and promissory estoppel. Their application sought to secure the sum of $100,000. On June 6, 2005, a hearing was held on the prejudgment remedy application. The defendant argued that without a written promise to indemnify the plaintiffs, the agreement is subject to the statute of frauds and is unenforceable. She argues that her promise to pay the bond was a promise to answer for the debt of her son. The plaintiffs argue that the bond was executed in reliance on the defendant's agreement and promise to indemnify the plaintiffs. They maintain that the defendant's agreement was an original promise and is not within the statute of frauds.
The plaintiffs presented-the following: (1) Wilson's "buff" account statement from Southwest Bank of Texas, (2) a signed copy of a bail bond application with Ranger Insurance, (3) a letter from Fidelity, (4) a certified copy of Wilson's assignment of all her assets with Ranger Insurance to Fidelity, (5) a copy of transactions for the bank account of Wilson, (6) a signed copy of the executed power of attorney by Wilson, (7) a copy of the bond appearance, (8) a copy of Wilson's contract with Fidelity and (9) a transcript of the hearing on March 21, 2005.
"General Statutes § 52-550(a) provides in relevant part: No civil action may be maintained in the following cases unless the agreement, or a memorandum of the agreement, is made in writing and signed by the party, or the agent of the party, to be charged . . . (2) against any person upon any special promise to answer for the debt, default or miscarriage of another . . ." "[T]he primary purpose of the statute [of frauds] is to provide reliable evidence of the existence and the terms of the contract . . ." Heyman v. CBS, Inc., 178 Conn. 215, 221, 423 A.2d 887 (1979). "The statute of frauds provides that an oral promise made to answer for the debt of another is unenforceable . . . The statute does not apply, however, if the promise is an original undertaking rather than a collateral one . . . Fundamentally the distinction between a contract which falls within the condemnation of the statute of frauds and one which does not is that the former is a collateral undertaking to answer in case of a default on the part of the obligor in the contract, upon whom still rests the primary liability to perform, whereas in the latter the obligation assumed is a primary one that the contract shall be performed." (Citations omitted; internal quotation marks omitted.) Kerin Agency, Inc. v. West Haven Painting Decorating, Inc., 38 Conn.App. 329, 331, 660 A.2d 882 (1995). "If . . . there is a benefit to the promisor which he did not before, and would not otherwise enjoy, and in addition the act is done upon his request and credit, there ordinarily arises an original undertaking not within the statute . . . The question as to whom credit was given, which is determinative of whether the agreement was an original undertaking not within the statute, is one of fact." (Citations omitted; internal quotation marks omitted.) Meyers v. Arm, 126 Conn. 579, 583, 13 A.2d 507 (1940).
In Biestek v. Varricchio, 34 Conn.Sup. 620, 623, 380 A.2d 1351 (1977), a licensed bondsman brought an action to recover damages which resulted when the defendant refused to indemnify him for losses incurred upon the failure of her son to appear for his court hearing. In an effort to secure the release of her son, the defendant had signed a bond application presented to her by the plaintiff. The court found that there was ample support in the record that the defendant's promise was an original rather than a collateral undertaking and was not subject to the statute of frauds. The court reasoned that the defendant was the primary party that agreed to indemnify the bondsman in the event of forfeiture of the bond.
Cf. McCormick v. Boylan, 83 Conn. 686, 78 A. 335 (1910).
In the present case, the defendant went to Wilson in order to secure a bond for her son's release from jail. During the meeting, the defendant signed the bail bond application and contract that was presented to her. The bond application states in relevant part that "the Company has executed . . . in behalf of and/or at the instance of the indemnitor(s), the bond or undertaking described in the foregoing application, upon the security and indemnity herein provided, which is hereby referred to and made a part of this agreement." Although the bond application and contract has Ranger Insurance as the company of record, the fact remains that the defendant signed the application and agreed to indemnify the plaintiffs in the event of forfeiture of the bond, Nowhere on the bond application and contract does the signature of her son appear. He was "as far as the record shows, no party to the transaction resulting in the plaintiff becoming sureties upon the bond, but the [defendant] entered into the agreement upon [her] own responsibility." Calamita v. DePonte, 122 Conn. 20, 25, 187 A. 129 (1936). It was her actions that made it possible for the bond to be executed, her promise is therefore an original undertaking and not subject to the statute of frauds. Accordingly, the agreement between the plaintiffs and the defendant is enforceable because it is an original undertaking.
Wilson assigned all of her right, title and interest in and to all money, securities and other things of value that she had paid over or deposited with Ranger Insurance to Fidelity.
Accordingly, the plaintiff's Application is granted and plaintiff may attach the defendant's property in accordance with the order attached to the application and signed by the court.
SKOLNICK, J.