Pacific Discount Co. v. Jackson

• Decision Date: 10 July 1961
• Docket Number: No. A--222,A--222
• Citation: 172 A.2d 440,68 N.J. Super. 331
• Parties: PACIFIC DISCOUNT CO., Inc., a New Jersey corporation, Plaintiff-Appellant, v. Henry JACKSON and Audrey Robinson, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 331

68 N.J.Super. 331

172 A.2d 440

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

No. A--222.

Superior Court of New Jersey Appellate Division.

Argued May 29, 1961.

Decided July 10, 1961.

Russell H. Hulsizer, Roselle, for plaintiff-appellant(Sollie Wolfman, Newark, attorney; Russell H. Hulsizer, Roselle, of counsel).

No appearance for defendants-respondents.

Before Judges PRICE, GAULKIN and SULLIVAN.

The opinion of the court was delivered by

PRICE, S.J.A.D.

Plaintiff seeks to reverse a judgment of the District Court denying it recovery of $824.29, asserted by plaintiff to be the amount of the deficiency (including 'attorney collection fee amounting to $107.50') resulting from the repossession and resale (pursuant to R.S. 46:32--28, N.J.S.A.) of a 'second hand' automobile, originally sold by St. George Motors (hereinafter designated Motors) to defendants under a conditional sales contract.The contract was accompanied by defendants' promissory note dated July 1, 1959.After making several payments defendants defaulted and the deficiency action resulted.Plaintiff had become the holder of defendants' note and contract by Motors' endorsement and assignment on July 1, 1959.

The central question projected by the appeal is whether plaintiff's utilization of 'certified mail' instead of 'registered mail' in sending to defendants notice of the prospective resale of the automobile was legally sufficient under the provisions of R.S. 46:32--25, N.J.S.A. in view of N.J.S.A. 1:1--2, which provides that:

'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.* * *

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

Defendant Jackson made monthly payments to plaintiff through January 1960; defendants defaulted in February the automobile was repossessed in March and sold on March 31, 1960.The trial court's opinion contains the following:

'* * * Mr. Gross (plaintiff's president) further testified that * * *.Notice of such sale was published in the Newark Evening News on March 23, 1960 * * * and was posted at three public places in Newark, namely, 455 So. 10thStreet, 522 So. 19th Street and So. 13th Street and 14th Avenue.Mr. Gross acting as nominee for St. George Motors, bought the car at the auction for $744 and resold it to St. George Motors for $744.

'Plaintiff enclosed one 'Notice of March 31st Sale' * * * in a stamped sealed envelope postmarked March 17, 1960, addressed to: Henry Jackson, 88 Boyd Street, Newark, and another in a stamped sealed envelope bearing the same postmark and addressed to: Audrey Robinson, 41 17th Avenue, Newark.Each such notice was sent by certified mail.Although defendant Jackson testified both he and Robinson lived at the respective addresses appearing on each of the envelopes containing a 'Notice of Sale,' neither letter was received by the addressee defendants, and consequently plaintiff never received signed return receipt cards.The unopened Jackson letter was returned to plaintiff bearing in substance the legend 'Addressee unknown at this address.'The unopened Robinson letter was returned to plaintiff bearing in substance, the legend 'Unclaimed.'To each such letter was pasted a blank, unused return receipt card.* * * Mr. Gross said he did not recall whether these letters were returned to him by the post office before or after the March 31st sale.'

The trial court held that R.S. 46:32--25, N.J.S.A. should be strictly construed and 'plainly required personal service or service by registered mail' and that the selection of 'certified mail' as the medium for the transmittal of the notice was 'an unauthorized method and is therefore void and of no effect' and that as a consequence the deficiency action was not maintainable.The trial court further held that, assuming 'service by certified mail is proper'plaintiff was without right to maintain the instant action because actual 'receipt' of the notice by the vendees had to be shown.

In assessing the merits of this appeal it is important to note that we heretofore have had occasion to emphasize that the protection of the buyer was the primary purpose to be achieved by the Uniform Conditional Sales Act.In Bancredit Inc. v. Meyers, 62 N.J.Super. 77, 81, 162 A.2d 109, 111(App.Div.1960), we said:

'* * * As was observed in Plainfield Motor Co. v. Salamon, 13 N.J.Misc. 570, 572, 180 A. 428, 429, (D.Ct.1935), in the drafting of the Uniform Conditional Sales Act, from which our statute is essentially taken, '(t)he welfare of the buyer was given especial attention and every reasonable safeguard erected and embodied therein for his protection.Its primary purpose seems to be to protect the buyer from imposition and loss.' * * *'

In Commercial Credit Corp. v. Lawley, 47 N.J.Super. 207, 213, 135 A.2d 546, 549(App.Div.1957), we stated:

'* * * The pupose of the notice (required by R.S. 46:32--25) is to inform prospective bidders of the sale in order to secure a good price for the article to be sold and also to apprise the conditional vendee of it in order to enable him to protect his interests by buying in the article or by working up interest in the sale, or otherwise, as may seem best to him. * * *'

We are not in accord with the trial court's determination that the actual receipt of the notice by the vendee is a prerequisite to the sale.The very fact that the act provides a limited time for the sale to be held after seizure of the chattel, contains no provision for extension of time therefor, or outlines any procedure to be followed by the assigned of the conditional sales contract in the event the actual receipt of the notice is not shown, negates the trial court's conclusion in that regard.Various conditions might well exist which would make actual receipt of the notice impossible.If such requirement existed the defaulting vendee would have it in his power to thwart the sale.SeePowell v. Credit Acceptance Corp., 131 Misc. 870, 228 N.Y.S. 427(Cty.Ct.1928);Manhattan Taxi Service Corp. v. Checker Cab Mfg. Corp., 226 App.Div. 624, 236 N.Y.S. 559(App.Div.1929), modified253 N.Y. 455, 171 N.E. 705, 69 A.L.R. 1190(Ct.App.1930);Commercial Credit Corp. v. Ornstein, 245 App.Div. 815, 281 N.Y.S. 321(App.Div.1935).See generally78 C.J.S.Sales§ 601(c)(2), at p. 362;Annotation, 49 A.L.R. (2d) 15, 36(1956);Annotation, 83 A.L.R. 959, 983(1933).

As we view it, the single crucial question presented by the factual situation in the case at bar is the legality of using 'certified mail' instead of 'registered mail' as a medium for sending the notice of sale to the defaulting vendees.We conclude that to hold that 'registered mail' in R.S. 46:32--25, N.J.S.A. includes 'certified mail' would be 'repugnant' to the 'subject' and 'context' of that statute and that consequently N.J.S.A. 1:1--2 is not here applicable.

Bearing in mind that strict compliance with the resale provisions of R.S. 46:32--25, N.J.S.A. is a prerequisite to maintaining a deficiency suit (Bergen Auto Company v. Mattarochio, 58 N.J.Super. 161, 165, 155 A.2d 787(App.Div.1959);Veterans Loan Authority v. Rozella, 21 N.J.Super. 1, 3--4, 90 A.2d 505(App.Div.1952)), we compare the two mailing media involved.In this connection we note the case of Oneida National Bank & Trust Company of Utica v. Manikas, 10 Misc.2d 671, 175 N.Y.S.2d 612(Cty.Ct.1958).In that case notice of the sale of the automobile at public auction was given to defendant by certified mail.The letter containing the notice was delivered to the address at which defendant lived and the attached return receipt card was signed by a person other than defendant.That person later testified that she observed defendant reading the notice.The applicable New York statute(New York Personal Property Law, McKinney's Consol. Laws, c. 41, Sec. 79) provided, as does ours, that notice to the conditional vendee should be in writing and given 'either personally or by registered mail.'175 N.Y.S.2d at p. 614.The court noted that consideration of certain proposed legislation providing for the use of certified mail as a substitute for registered mail in all instances where registered mail was then required had been abandoned by the New York legislature in 1957. 175 N.Y.S.2d at p. 616.The court held that the statute referable to the notice of sale was to be strictly construed and that failure to give such notice either personally or by registered mail was fatal to plaintiff's cause.Judgment was entered for defendant.In the opinion in that casethe court referred (175 N.Y.S.2d, at pp. 616--617) to a veto message from the New York Governor to that state's legislature on March 11, 1957, relating to the use of certified mail as an alternative to...