Associates Discount Corp. v. Smith's Windham Lincoln-Mercury Sales, Inc.

• Decision Date: 30 November 1965
• Docket Number: LINCOLN-MERCURY
• Citation: Associates Discount Corp. v. Smith's Windham Lincoln-Mercury Sales, Inc., 214 A.2d 909, 153 Conn. 176 (Conn. 1965)
• Court: Connecticut Supreme Court
• Parties: ASSOCIATES DISCOUNT CORPORATION v. SMITH'S WINDHAMSALES, INC. Supreme Court of Errors of Connecticut

Page 909

214 A.2d 909

153 Conn. 176

ASSOCIATES DISCOUNT CORPORATION v.SMITH'S WINDHAM LINCOLN-MERCURY SALES, INC.

Supreme Court of Errors of Connecticut.

Nov. 30, 1965.

Abraham R. Friedman, Hartford, with whom, on the brief, was Alfred F. Kotchen, Hartford, for appellant(plaintiff).

Everett F. Fink, Hartford, with whom, on the brief, was Joseph W. Ress, Hartford, for appellee(defendant).

Before KING, C. J., and MURPHY, ALCORN, SHANNON and HOUSE, JJ.

ALCORN, Associate Justice.

The trial court rendered a summary judgment for the defendant, and the plaintiff has appealed.

The defendant sold six tractors to a third party.Each transaction was separate and under an individual conditional sales contract called a 'security agreement'.Each contract provided, in substance, that if the purchaser failed to pay any instalment when due, the seller, described as the 'secured party', might enter any premises where the vehicle was, take possession of it, sell it at public or private sale with or without notice, and bid at the sale.The contract defined the term 'secured party' to include successors or assigns of the seller.The defendant assigned each of the contracts to the plaintiff.The assignment in five of the contracts provided, in part, that '[t]he undersigned [defendant] guarantees payment of the unpaid balance on said Security Agreement as and when the same shall become due and payable under the terms of said Security Agreement'.The other contract was assigned with a repurchase clause providing that '[t]he undersigned [defendant] further agrees that if Assignee [plaintiff] repossesses the said motor vehicle described in said Security Agreement, the undersigned will purchase the said motor vehicle in accordance with the provisions of Dealer's Protection AgreementNo. 1 and will purchase said motor vehicle although Assignee has, without undersigned's consent, waived defaults made by the Debtor in performing said Security Agreement and/or granted extensions of time to said Debtor in which to perform.'The tenor of 'the provisions of Dealer's Protection AgreementNo. 1' does not appear.The purchaser of the vehicle defaulted, and the plaintiff sued the defendant for the unpaid balance on each contract.

The complaint was in six counts, each relating to one of the contracts.Each count alleged the sale to which it related, the assignment by the defendant of the applicable contract, the defendant's guarantee of the unpaid balance, the defendant's default and the amount of the unpaid balance for which demand was made.

The defendant's answer admitted all allegations of the complaint except those asserting that it had guaranteed payment of the unpaid balance, that it was in default for the unpaid balance claimed and that demand had been made for that balance.These allegations were expressly denied.In addition, the defendant pleaded a special defense, alleging, in substance, the plaintiff's failure to comply with § 42a-9-504 of the General Statutes by neglecting to hold a legal public auction of the vehicles at which the plaintiff claimed to have purchased them and a failure to dispose of the collateral in a commercially reasonable manner as required by that statute.In addition, it was alleged that the plaintiff violated § 42a-1-203 by failing to proceed in good faith in disposing of the collateral.The plaintiff denied the allegations of this special defense.

In response to interrogatories in a motion for disclosure filed by the defendant, the plaintiff supplied detailed information concerning its repossession and sale of the vehicles and the amounts for which each was sold.

After the pleadings were closed, the defendant moved for summary judgment on two grounds, first, that the plaintiff's claim on each count arises from deficiencies alleged to have occurred after repossession of the several vehicles and, second, that because of the irregularities in the conduct of the public auction alleged in the special defense the plaintiff was not entitled to recover any deficiency.The affidavit required by § 299 of the Practice Book in support of the motion dealt only with the second ground of the motion.The affidavit and not purport to sustain the first...