Commercial Credit Corp. v. Lawley

Decision Date29 October 1957
Docket NumberNo. A--598,A--598
Citation135 A.2d 546,47 N.J.Super. 207
PartiesCOMMERCIAL CREDIT CORP., a corporation, Plaintiff-Appellant, v. Thomas H. LAWLEY, t/a Lawley Motor Company, and Stanley Facey, Defendants-Respondents. . Appellate Division
CourtNew Jersey Superior Court — Appellate Division

Maurice Y. Cole, Jr., Atlantic City, argued the cause for plaintiff-appellant (Cole & Cole, Atlantic City, attorneys).

Enoch A. Higbee, Jr., Atlantic City, argued the cause for Thomas H. Lawley, defendant-respondent (Walter S. Jeffries, Atlantic City, attorney).

Before Judges CLAPP, JAYNE and HUGHES.

The opinion of the court was delivered by

CLAPP, S.J.A.D.

Plaintiff brought this action in the Atlantic County District Court against Thomas H. Lawley, trading as Lawley Motor Company, to recover $1,000 for breach of his contract with it, and against Stanley Facey for the deficiency of $1,000 due under a conditional sales contract. The court by its judgment dismissed the action against Lawley and entered judgment by default against Facey for $1,000. Plaintiff appeals from the judgment insofar as it was entered in favor of Lawley. No appeal is taken with respect to the judgment insofar as it went against Facey.

Under the contract with Lawley, who is an automobile dealer in Atlantic City, plaintiff agreed to purchase certain commercial instruments, including conditional sales contracts covering automobiles; and Lawley agreed that if a conditional vendee defaulted in the purchase of an automobile, he (Lawley) would among other things repurchase the automobile for an amount equal to that owing by the vendee at the time of the default, provided the automobile was tendered to him (Lawley) within 90 days after the default.

After making this contract, and on November 20, 1953, Lawley sold Facey a new 1953 Nash under a conditional sales contract for a total time price of $4,118.50, less a down payment of $1,056, leaving due a time balance of $3,062.50 payable in 30 monthly installments. On the same day, Lawley assigned the contract to the plaintiff, but did not sign the printed form of guaranty attached to the assignment. Facey thereafter defaulted under the contract. However on March 11, 1955 the contract was refinanced, and a new conditional sales contract, initiated by the plaintiff, was entered into between Lawley and Facey covering the same auto, under which a further finance charge of $262.72 was added to the $1,460 due on the old contract, and the total, $1,722.72, the new time price, was made payable over a 24-month period, thus reducing the monthly charges. The contract was marked 'Ref' in two places, indicating (to the parties) that it was a refinance agreement. Lawley assigned the refinance contract to the plaintiff.

Facey apparently paid $646.02 on the refinance contract, leaving $1,076.70 due, when he again defaulted. Shortly thereafter plaintiff took possession of the auto in Easton, Pennsylvania, where it had been abandoned, and gave notice that the auto was to be sold in Easton. N.J.S.A. 46:32--25 requires that the sale provided for by the Uniform Conditional Sales Act be had 'in the state where (the goods) were at the time of the retaking.'

Lawley's entire argument hinges on the fact that the notice of sale, though it states the true balance due under the refinance contract, namely, $1.076.70, is nevertheless nugatory since it seems to turn on a default in the original contract. The notice reads as follows:

'Notice of Sale

'Date 3/20/56

'Balance due $1076.70

'(Not including expenses)

'Dear sir:

'Take Notice that on account of default in the security lien instrument (assigned and transferred to undersigned) described below, the merchandise underlying the instrument has been repossessed and the full outstanding balance shown above is immediately due and payable.

'You Will Please Take Further Notice that unless the said balance due, plus the expense of retaking, keeping and storing said merchandise, be sooner paid, Same Will Be Sold For Cash.

at 10:00 (hour) A.M. on the 2nd (day) of April, 1956 (month-year)

at Miller Motor Co. 290 N. Front St. Easton, Pa. (Place of Sale)

'Commercial Credit Corporation

'By Green and Yanoff, attorneys

'Date of instrument 11 (Day) 20 (Mo.) 53 (Year)

'(1) Conditional Sale

Dealer Lawley Motor Co.

Merchandise 1953 Nash Hardtop

                                                                    R 708164
                              (Kind)    (Type)     (Motor No.)    (Serial No.)
                $4118.50      $1056    $3062.50  $29 at 102.08    1 at 102.18
                Time Selling  Down     Balance   No. and Amt. of
                Price         Payment  due       Installments"
                

No question is raised but that this notice was given to Facey and Lawley and was properly posted and published, all pursuant to the statute. At the date stated in the notice, a public sale was held and the car was sold to the plaintiff, the highest bidder, for $100. Within 90 days of Facey's default, the car was taken to Atlantic City and tendered to Lawley by letter, but Lawley refused to repurchase it. Plaintiff then resold it for $150 and instituted this action against Lawley and Facey for the amount it claimed was owing, namely $1,000.

Plaintiff advances three arguments in support of its position. First, it claims that the terms of N.J.S.A. 46:32--25, requiring the conditional vendor to sell the auto at a public sale where the buyer has paid 'at least fifty per cent of the Purchase price', are to be construed as having reference to the original contract price, not to the price stated in the refinance contract. Under the contrary construction urged by defendant, plaintiff says a finance company would secure an advantage not contemplated by the statute whenever the parties enter into a refinance contract after a large part of the original price has been paid. For under defendant's construction in such a case, if 50% Of the price stated in the refinance contract has not been paid, a sale would not be necessary and the finance company could appropriate to itself the auto, as well as the payments made (here they total more than three-quarters of the original price, though less than 50% Of the refinance price was paid). It is urged that the statute was designed to prevent such a forfeiture. Cf. Fisk Discount Corp. v. Brooklyn Taxicab Trans. Co., 270 App.Div. 491, 60 N.Y.S.2d 543 (App.Div.1946), where the original contract was Extended, while here it was refinanced; it might perhaps be said however that the cases are not substantially different since the parties here regarded the refinance agreement merely as a projection of the original agreement. Plaintiff argues that if pursuant to its contentions the amount of the vendee's...

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4 cases
  • King v. South Jersey Nat. Bank
    • United States
    • New Jersey Supreme Court
    • December 10, 1974
    ... ... 12A:9--503, a part of the New Jersey Uniform Commercial Code. 1 It invokes, in the name of constitutional right, the ... Meyers, 62 N.J.Super. 77, 162 A.2d 109 (App.Div.1960); Commercial Credit Corp. v. Lawley, 47 N.J.Super. 207, 135 A.2d 546 (App.Div.1957); ... ...
  • State v. Wines, A--664
    • United States
    • New Jersey Superior Court — Appellate Division
    • October 30, 1957
  • Pacific Discount Co. v. Jackson
    • United States
    • New Jersey Superior Court — Appellate Division
    • July 10, 1961
    ... ...         In Commercial Credit Corp. v. Lawley, 47 N.J.Super. 207, 213, 135 A.2d 546, 549 ... ...
  • Frantz Equipment Co. v. Anderson
    • United States
    • New Jersey Supreme Court
    • May 21, 1962
    ... ... 77, 162 A.2d 109 (App.Div ... 1960). In Commercial Credit Corp. v. Lawley, 47 N.J.Super. 207, at p. 213, 135 A.2d 546, at p ... ...

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