Pacific Discount Co. v. Jackson

• Decision Date: 02 April 1962
• Docket Number: No. A--83,A--83
• Citation: Pacific Discount Co. v. Jackson, 37 N.J. 169, 179 A.2d 745 (N.J. 1962)
• Parties: PACIFIC DISCOUNT CO., Inc., a New Jersey corporation, Plaintiff-Appellant, v. Henry JACKSON and Audrey Robinson, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 169

37 N.J. 169

179 A.2d 745

PACIFIC DISCOUNT CO., Inc., a New Jersey corporationPlaintiff-Appellant, v.Henry JACKSON and Audrey Robinson, Defendants-Respondents.

No. A--83.

Supreme Court of New Jersey.

Argued Feb. 6, 1962.

Decided April 2, 1962.

H. Kermit Green, Newark, for appellant(Milton S. Kramer, Newark, attorney).

C. Clyde Ferguson, Jr., New York City, of the Massachusetts and New York Bars, for respondents as amicus curiae.

The opinion of the court was delivered by

HANEMAN, J.

Defendant Jackson agreed to purchase an automobile from St. George Motors (Motors) upon a conditional sales contract accompanied by a promissory note signed by him and cosigned by defendant Robinson.Plaintiff became the owner of the defendant's note and contract by Motors' endorsement and assignment.After making a number of payments Jackson defaulted.Plaintiff thereupon repossessed the automobile.In the process of foreclosing the conditional sales agreement, plaintiff forwarded to Jackson and Robinson by certified mail notice of the proposed resale of the vehicle.Neither notice, however, was received by defendants although the correctness of the addresses thereon was admitted by Jackson.When returned unopened to plaintiff the Jackson envelope bore the legend, 'Addressee unknown at this address' and the Robinson envelope bore the legend 'Unclaimed.'At the public resale the car brought less than the remaining balance due under the conditional sales contract and note.Plaintiff thereupon filed suit in the Essex County District Court demanding judgment for the deficiency, plus an attorney's collection fee provided for in the contract.Jackson entered a Pro se appearance.

The trial court held that under R.S. 46:32--25, N.J.S.A. certified mail was an unauthorized medium for the transmittal of notice of resale and that, in any event, actual receipt of the notice by the vendees was an essential requirement of that statute.Accordingly, it entered judgment for defendants.Plaintiff thereupon appealed to the Appellate Division, which, while disapproving of so much of the trial court's conclusion as made actual receipt of notice a prerequisite of a sale, affirmed the judgment upon the sole ground that certified mailing of notice was an unauthorized method of service.Pacific Discount Co., Inc. v. Jackson, 68 N.J.Super. 331, 172 A.2d 440(App.Div.1961).This court granted plaintiff's petition for certification, 36 N.J. 139, 174 A.2d 924(1961), and, no appearance having been entered for either defendant, appointed Prof. C. Clyde Ferguson, Jr., of Rutgers University Law School, Amicus curiae to defend the Appellate Division judgment.We agree with the Appellate Division that actual receipt of notice of sale is not a prerequisite to a valid resale and thereby reject this ground for the judgment of the trial court.

The sole question for decision, therefore, and the focal point of the Appellate Division opinion, is whether written notice of a proposed sale sent by the repossessing party to the conditional vendee Via certified mail constitutes sufficient compliance with the statutory requirements.

The section of the Uniform Conditional Sales Act directly involved is R.S. 46:32--25 (L.1919, c. 210, § 19), N.J.S.A., which reads in part:

'If the buyer does not redeem the goods within ten days after the seller has retaken possession, and the buyer has paid at least fifty per cent of the purchase price at the time of retaking, the seller shall sell them at public auction in the state where they were at the time of the retaking, such sale to be held not more than thirty days after the retaking.The seller shall give to the buyer not less than ten days' written notice of the sale, either personally or by registered mail, directed to the buyer at his last known place of business or residence. * * *.'

At the time of the adoption of the Uniform Conditional Sales Act certified mail was not in existence.The Legislature, in selecting a mailed type notice of resale, had, therefore, only a choice between ordinary or registered mail.It selected the latter.On June 6, 1955 the United States Post Office Department adopted a new type of mail--certified mail--which is in many respects, hereinafter more particularly delineated, similar to registered mail.Two months later, in August 1955, Assembly Bill A.590 was introduced as amendatory of N.J.S.A. 1:1--2 and upon passage in the Legislature and signature by the Governor on October 7, 1955 became L.1955, c. 226, § 1.Prior to the 1955amendmentN.J.S.A. 1:1--2 contained the following opening paragraph:

'Unless it be otherwise expressly provided or there is something in the subject or context repugnant to such construction, the following words and phrases, when used in any statute and in the Revised Statutes, shall have the meaning herein given to them.'

There followed interpretative designations for some 35 words and phrases.The 1955 amendatory statute reenacted N.J.S.A. 1:1--2 verbatim, including the above introductory paragraph, and added as the sole change thereto a provision specifying the meaning to be attributed to the term 'Registered Mail.'That portion of the statute so added reads:

'Registered mail.The words 'registered mail' include 'certified mail."

It seems clear that, as far as this added portion of the statute is concerned, the Legislature intended to equate certified with registered mail.The crucial question therefore is whether 'there is something in the subject or context (of R.S. 46:32--25, N.J.S.A.) repugnant to' the use of certified mail as a means of giving written notice of resale to a defaulting conditional sale vendee.

Defendants argue that the context and subject matter of R.S. 46:32--25, N.J.S.A. require the use of notice devices which possess a high probability factor insofar as actual notice to a defaulting buyer of the sale of the collateral is concerned and that registered mail furnishes this factor to a higher degree than does certified mail.Defendants further urge that as R.S. 46:32--25, N.J.S.A. provides a process-type notification, registered mail is the only mail service which is consistent with the purpose of the subject matter requirements of the act.They conclude that certified mail for these reasons is repugnant to R.S. 46:32--25, N.J.S.A.

It should first be noted that the disqualification for repugnancy does not apply to registered or certified mail alone but to the entire glossary of 36 words and phrases listed in the statute.As a result of this observation, it becomes necessary to determine what norm to establish as a test, not only...