Farmers Bank of State of Del. v. Odom
| Decision Date | 09 May 1968 |
| Citation | 246 A.2d 85 |
| Parties | 5 UCC Rep.Serv. 1208 FARMERS BANK OF the STATE OF DELAWARE, Newark, Delaware, a Delaware corporation, Plaintiff, v. Harlan ODOM and Mozelle Odom, his wife, Defendants. |
| Court | Delaware Superior Court |
O'HORA, Judge.
This is an action initiated by defendants who have filed a petition for a Rule to Show Cause why a judgment should not be opened. After plaintiff's answer was filed, defendants moved for summary judgment. Defendants also have filed a counterclaim for damages plus costs and attorney fees.
On April 24, 1967, defendants purchased a certain 20 foot motor boat from Taylor Products, Inc. In addition to a cash down payment of $450.00, defendants executed a Conditional Sales Contract and a Judgment Note, which instruments were subsequently assigned to plaintiff.
On May 3, 1967, plaintiff entered appearance for defendants, as their attorney, and confessed judgment on the note. On August 12, 1967, plaintiff reposessed the boat in question. By this latter date defendants had paid two monthly payments on account of their indebtedness, so that they had paid a total of $573.90 in connection with the entire transaction. Defendants had not, however, made regular agreed upon monthly payments and were, in fact, in arrears to a considerable extent.
Plaintiff, electing to resell the boat, caused a notice of resale to be published in a newspaper on August 3, 1967. This notice read as follows:
'NOTICE'
'This is to serve as Public Notice that there will be a Public Sale of a 20 foot Inboard Outboard Atlantic on the premises of Taylor Products, Inc., R.D. Box 109, Milford, Delaware at 10:00 A.M., Tuesday, September 5, 1967.
This automobile is being sold to satisfy a lien obtained by way of a conditional sales contract which has been assigned to the Farmers Bank of the State of Delaware, and who is the holder thereof.
It is being sold to satisfy the said Bank's claim under said conditional sales contract against HARLON A. ODOM.
It'
It is to be noted that the notice of resale, published on August 31, 1967, indicated that a sale was to be held at 10:00 A.M. on September 5, 1967. The item to be sold was described as a '20 foot Inboard Outboard Atlantic', in the first paragraph of the notice, and as 'This automobile', in the second paragraph. Nowhere in the notice was the item specifically described as a boat.
After a resale of the boat was had, pursuant to the notice mentioned, a deficiency judgment was entered for the difference between the amount received from the resale and the amount due by defendants under their original obligation.
Defendants take the position that the notice published by plaintiff was defective under the provisions of 6 Del.C. § 919. The pertinent provisions of this statute require that the seller, who has retaken possession of goods and intends to resell, 'give notice of the sale at least five days before the sale'. Defendants argue that the notice was not given five days before the sale and, furthermore, did not adequatley describe the chattel to be sold.
It is not necessary to determine the adequacy of the notice here used, with respect to time, in view of this Court's conclusion that the description of the chattel resold was itself so inadequate that it did not meet the requirements of the law. Notice requirements set forth in 6 Del.C. § 919 have been treated by courts of this jurisdiction as being mandatory in nature. Commercial Credit Corp. v. Swiderski, 195 A.2d 546 (Super.Ct.1963); United Securities Corporation v. Tomlin, 198 A.2d 179 (Super.Ct.1964). For other cases to the same effect as the Delaware decisions see 49 A.L.R.2d 41. See also Bowden v. Sussex Studebaker, Inc., 3 Storey 66, 164 A.2d 595 (Super.Ct.1960). If the niceties of the statute pertaining to such matters as timing must be strictly adhered to it would seem to follow that a reasonably accurate description of the chattel itself would also be required. Meeting all of the requirements of the notice statute to the letter would be meaningless as a practical matter if an inadequate description of the chattel itself is used.
The general rule with regard to descriptions of articles in notices of resale is a sensible one. It requires tht the description be sufficient to inform prospective bidders in a general way whether or not the property to be sold is anything in which they might have an interest. Bulldog Concrete Forms Sales Corp. v. Taylor, 195 F.2d 417, 49 A.L.R.2d 1 (9th Cir. 1952). Plaintiff contends it has met this description test because the notice, though obviously in error by describing both a boat and an automobile, would have attracted people interested in both such articles and thus have engendered more than the usual interest in the sale. Plaintiff further points out that the place of sale mentioned in the notice was the premises of Taylor Products, Inc., a boat business establishment, not an automobile dealership, and thus readers of the notice would realize that the item to be sold must be a boat, not an automobile.
Plaintiff's argument is certainly ingenious, but hardly persuasive. It first requires an assumption that the public generally would know that a '20 foot Inboard Outboard Atlantic' is a boat, even though later referred to as an automobile. It next requires an assumption that the public generally knows the nature of the business conducted by Taylor Products, Inc. This Court finds no basis for adopting either assumption from the record in this case.
The description of the chattel in the instant case leaves much to conjecture. A notice such as this would seem to be fully covered by the reference to notices found in 66 C.J.S. Notice § 16, which reads:
Allen v. Reed, 147 Tenn. 612, 250 S.W. 546, cited by plaintiff, is not helpful. That case involved a notice in which the name of the seller was left off. It is understandable why the court there concluded that such defect was insufficient to cause a deficiency judgment to be set aside. In such transactions it could be of little or no importance to the public to know the name of the seller.
Defendants' counterclaim is based upon provisions of 6 Del.C. § 925 which reads as follows:
'If the seller fails to comply with the provisions of sections 918--921, and 923 of this title after retaking the goods, the buyer may recover from the seller his actual damages, if any, and in no event less than one-fourth of the sum of all payments which have been made under the contract, with interest.'
Defendants rely upon the authority of Commercial Credit Corporation v. Swiderski (supra) wherein Chancellor Duffy, then President Judge of the Superior Court, after concluding that 6 Del.C. § 919 had not been complied with vacated the deficiency judgment previously obtained and then entered judgment on a counterclaim filed, as here, pursuant to 6 Del.C. § 925. Insofar as the counterclaimant's right to recover under the statute here is concerned, it would appear that Swiderski is a holding exactly in point.
Plaintiff here contends, in effect, that the Swiderski reasoning and conclusion should not be applied because it is wrong. Plaintiff points to the fact that Chancellor Duffy in Swiderski relief primarily upon New Jersey cases. (Frantz Equipment Co. v. Anderson, 37 N.J. 420, 181 A.2d 499 (Super.Ct.1962)) and ignored better reasoned holdings from New York. (Ellner v. Commercial Credit Corp., 137 Misc. 251, 242 N.Y.S. 720; Capital District L.A.W. Corp. v. Blake, 136 Misc. 651, 241 N.Y.S. 476).
Both the New Jersey and...
To continue reading
Request your trial
-
Wilmington Trust Co. v. Conner
...provisions was viewed in Delaware as a condition precedent to the collection of a deficiency judgment. Farmers Bank of the State of Delaware v. Odom, Del.Super., 246 A.2d 85 (1968); United Securities Corporation v. Tomlin, Del.Super., 198 A.2d 179 (1964); Commercial Credit Corp. v. Swidersk......
-
Associates Financial Services Co., Inc. v. DiMarco
...195 A.2d 546 (1963); United Securities Corporation v. Tomlin, Del.Super., 198 A.2d 179 (1964); Farmers Bank of the State of Delaware v. Odom, Del.Super., 246 A.2d 85 (1968). It must be noted that the Delaware cases applying the Uniform Conditional Sales Act deal with violations of precise s......