Fid. Acceptance Corp. v. Alloway

• Decision Date: 30 December 1941
• Docket Number: No. 420.,420.
• Citation: 127 N.J.L. 450,23 A.2d 294
• Parties: FIDELITY ACCEPTANCE CORPORATION v. ALLOWAY.
• Court: New Jersey Supreme Court

23 A.2d 294

127 N.J.L. 450

FIDELITY ACCEPTANCE CORPORATION

v. ALLOWAY.

No. 420.

Supreme Court of New Jersey.

Dec. 30, 1941.

Appeal from District Court, First District, Burlington County.

Action by Fidelity Acceptance Corporation against Earl Alloway on a bond and warrant. Judgment for defendant and plaintiff appeals.

Judgment reversed and judgment entered for plaintiff.

Argued October term, 1941, before PARKER, DONGES, and COLIE, JJ.

Albert B. Melnik, of Camden, for appellant.

James M. Davis, Jr., of Camden, for respondent.

PER CURIAM.

Confessed judgment on bond and warrant was entered in favor of the plaintiff in the District Court. On defendant's application the judgment was opened and a trial was had, followed by a judgment for defendant, from which plaintiff appeals. It appeared from the evidence that the facts were substantially similar to those in the case of Ryba v. Atlas, etc. Corporation, 121 N.J.L. 478, 3 A.2d 447, namely, sale by a dealer named Riker of a secondhand automobile on the instalment plan: a conditional contract of sale assigned by Riker to the appellant: a bond and warrant in general form, naming the present appellant as obligee, conditioned for the payment of $429 in weekly instalments of $5.50 each, and making no reference to any other contract: and entry of judgment on the bond and warrant for $278.16, the amount stated in the usual affidavit. As in the Ryba case, the car was repossessed by appellant, apparently at the instance of the purchaser. There is nothing in the case to show that the car was resold. The court below said it seemed improbable that appellant still had the car: but probabilities are not usually evidential.

The point is made here that as the conditional sale contract and the bond and warrant were printed on the same sheet of paper, with a line of perforations between them to facilitate physical separation, they should be regarded as one instrument. This fact was noted, but not discussed, by the court below. We think the point is covered, and adversely to the respondent, by the case of Superior Finance Corporation v. John A. McCrane Motors, 115 N.J.L. 401, 180 A. 842, affirmed in 116 N.J.L. 435, 184 A. 828. The two instruments were separate contracts. It would seem to follow therefore, that any obligation under the contract of conditional sale to resell in order to lay the foundation of a suit for deficiency thereunder, was irrelevant to the definite and unconditional obligation to pay according...