Gramatan Nat. Bank & Trust Co. of Bronxville v. Backman, A--734

• Decision Date: 27 April 1954
• Docket Number: No. A--734,A--734
• Parties: GRAMATAN NAT. BANK & TRUST CO. OF BRONXVILLE v. BACKMAN. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 349

30 N.J.Super. 349

104 A.2d 729

GRAMATAN NAT. BANK & TRUST CO. OF BRONXVILLE v. BACKMAN.

No. A--734.

Superior Court of New Jersey.

Appellate Division.

Argued April 26, 1954.

Decided April 27, 1954.

Nathan C. Staller, Wildwood, for appellant (William Greenberg, Newark, on the brief).

No appearance for respondent.

Before Judges EASTWOOD, JAYNE and SMALLEY.

The opinion of the court was delivered by

JAYNE, J.A.D.

The facts established by the uncontroverted evidence at the trial of this action can be concisely stated. On February 18, 1952 the defendant executed and delivered a promissory note to the order of All State Construction Company in the sum of $708.12, payable in 36 equal and consecutive monthly installments of $19.67, the first of which was made due on April 1, 1952. The note provided that in the event any installment was not paid when due, the entire unpaid balance should thereupon, at the option of the holder, become immediately due and payable together with a sum equivalent to 18% Of the unpaid balance for the expense of collection and attorney's fees. The plaintiff became a Bona fide holder of the note before maturity, for value and in due course.

The defendant having defaulted in making the payments which became due for the months of November and December 1952 and January 1953, the holder of the note elected to declare the entire unpaid balance to be due and payable and instituted the present action in the Cape May County District Court to recover from the defendant the unpaid balance, costs, and the specified attorney's fee.

The judgment which comes to us for review is somewhat odd. It harmonizes with the conclusions expressed by the trial judge, from which we quote:

'I am persuaded to the conclusion that the alleged default was occasioned by the defendant's inexperience and misunderstanding of the transaction, and that she made a sincere effort to become current, which was rejected.

'If the defendant, within one week from the date hereof, becomes current in the total sum of her monthly payments up to and including June 1, 1953, by remitting the same to the attorney of the plaintiff, a judgment of no cause of action will be entered. Upon her failure so to do, there will be entered a judgment in favor of the plaintiff in the sum of $570.43, together with attorney's fees of 5%, and interest from December 1, 1952, on the aforesaid sum of $570.43.'

Our inspection of the exhibits weaves some doubt in our minds that the defendant's delinquencies were solely attributable to her inexperience and misunderstanding when we observe her written replies to the plaintiff's premonitory communications in which she expostulated: 'Go sit on a tack. If that Gramatan Bank doesn't stop with the monkey business, they will never get one cent.' 'My contract calls for $680, not for $708.12. Furthermore, if you send any more threatening letters, I will not even pay the $680. If the...