Johnson v. Anderson, A--657
| Decision Date | 05 October 1955 |
| Docket Number | No. A--657,A--657 |
| Parties | J. Kendrick JOHNSON, Jr., trading as the Hunterdon Adjustment Service, Plaintiff-Appellant, v. Donald ANDERSON and Allen M. Cottrell, t/a The Cottrell-Anderson Pontiac Co., and The General Motors Acceptance Corporation, a corporation of the State of New Jersey, Defendants- Respondents. . Appellate Division |
| Court | New Jersey Superior Court — Appellate Division |
Franklin W. Kielb, Flemington, for plaintiff-appellant.
Charles Blume, Newark, for defendants-respondents (Chivian & Chivian, Newark, attorneys).
Before Judges CLAPP, JAYNE and FRANCIS.
The opinion of the court was delivered by
CLAPP, S.J.A.D.
This appeal raises a question as to the proper construction of a section of the Uniform Conditional Sales Law.
The defendants Donald Anderson and Allen M. Cottrell, trading as The Cottrell-Anderson Pontiac Co., sold Wayne Blodgett a car pursuant to a conditional sales contract which stated that the sale was made:
"For a Total Time Price * * * $1644.90
Computed as follows
1. Cash Sale Delivered Price
* * * $1445.00
2. Total Down Payment * * $ 645.00
3. Unpaid Cash Price Balance
* * * $ 800.00
4. Cost of Car Insurance * * $ 99.00
5. Other Charges * * * $ ------
6. Principal Balance * * * $ 899.00
7. Finance Charge (Including
Charge for Group Creditor
Insurance $4.75) $ 100.90
* * * $ 999.90
8. Time (Deferred) Balance
Payable at office of General Motors
Acceptance Corporation to be
hereafter designated in 18
installments of ......................... $ 55.55
each, commencing May 13th, 1954
and on the same day of each
successive month thereafter * * *."
Mr. Blodgett made two payments of $55.55 and then defaulted. The car was repossessed by the defendant, the General Motors Acceptance Corporation, the assignee of the contract, which resold it at a private sale. N.J.S.A. 46:32--25 by its terms requires a 'public auction,' not a private sale, where 'at least fifty per cent of the purchase price at the time of retaking' has been paid for the car.
The plaintiff's claim is that because the car was sold at a private sale contrary to the terms of N.J.S.A. 46:32--25 defendant became liable under N.J.S.A. 46:32--31 for damages and in no event for less than one-fourth of all payments made under the contract. Mr. Blodgett assigned this claim to plaintiff, and plaintiff brought the present action to recover on it. Whether such a claim, created by N.J.S.A. 46:32--32, is assignable, has not been argued, and we therefore do not deal with the point. See Van Pelt v. Schauble, 68 N.J.L. 638, 640, 54 A. 437 (E. & A.1903); N.J.S.A. 2A:25--1; East Orange Lumber Co. v. Feiganspan, 120 N.J.L. 410, 199 A. 778 (Sup.Ct.1938), affirmed 124 N.J.L. 127, 10 A.2d 732 (E. & A.1940).
Defendants secured summary judgment below. Plaintiff appeals.
The question here is whether Blodgett had paid 'fifty per cent of the Purchase price' (N.J.S.A. 46:32--25). The two payments of $55.55, added to the down payment of $645 (the $645 item was in fact an allowance given to Mr. Blodgett on the trade-in of his old car), total $756.10. This is more than 50% Of the 'cash sale delivered price' of $1,445, but less than 50% Of the 'total time price' of $1,644.90. Which is the 'purchase price' within the intendment of N.J.S.A. 46:32--25? Plaintiff's contention is that the finance charges and cost of insurance are not part of the purchase price.
It might be observed, in passing, that if the two payments of $55.55 are each applicable first to finance and insurance charges due at the time of those payments (see Long v. Republic Varnish Enamel, etc., Co., 115 N.J.Eq. 212, 216, 169 A. 860 (E. & A.1933) and Morland Mortgage Co. v. Mt. Lebanon Cemetery Ass'n, 18 N.J.Super. 78, 81, 86 A.2d 693 (App.Div.1952)), the balance of those two payments, added to the down payment of $645, may possibly be less than 50% Of even the 'cash sale delivered price.' It might be noticed, too, that plaintiff wants us to hold that finance and insurance charges are to be excluded from the purchase price; and on the other hand he wants to obtain the benefit of amounts paid on those charges, by having such payments allocated entirely to the cash sale delivered price. However, these points are not raised by counsel, and we do not deal with them since we have no means of knowing from this record what portion of each payment of $55.55 is allocable to such charges, and what portion is allocable to the cash sale delivered price.
We are satisfied that not infrequently in connection with an installment sale, the word 'price' has reference to the 'time price.' Thus we find it to be common knowledge that the Price of articles bought on the installment plan is more than the price of the same when bought for cash. Lo Bosco v. Resnitzky, 120 N.J.L. 495, 496, 200 A. 1010 (Sup.Ct.1938). We find, too, a statute regulating retail installment contracts, which requires a statement in or accompanying such a contract separately itemizing the 'cash price,' the insurance cost to the retailer, the 'time price differential,' etc. N.J.S.A. 17:16B--6(b). Two of these items are defined in N.J.S.A. 17: 16B--1:
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Pacific Discount Co. v. Powell
...Motor Co. v. Salamon, 13 N.J.Misc. 570, 572, 180 A. 428 (D.Ct.1935). There is also an implicit assumption in Johnson v. Anderson, 37 N.J.Super. 117, 117 A.2d 42 (App.Div.1955), that the buyer in default can only be allowed the statutory credits. For the reasons stated therefore, the trial c......