Robins v. Mack Int'l Motor Truck Corp.

• Decision Date: 27 September 1934
• Docket Number: No. 77.,77.
• Parties: ROBINS et al. v. MACK INTERNATIONAL MOTOR TRUCK CORPORATION.
• Court: New Jersey Supreme Court

174 A. 551

ROBINS et al.

v. MACK INTERNATIONAL MOTOR TRUCK CORPORATION.

No. 77.

Court of Errors and Appeals of New Jersey.

Sept. 27, 1934.

Appeal from Supreme Court.

Suit by Edmond E. Robins and others against the Mack International Motor Truck Corporation. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Starr, Summerill & Lloyd, of Camden (Richard M. Glassner and Merritt Lane, both of Newark, of counsel), for appellant.

C. Richard Allen, of Camden (Henry F. Stockwell, of Camden, on the brief), for respondents.

PERSKIE, Justice.

The judgment which is before us for review represents the result of a third suit between the same parties for the same alleged cause of action. The first was tried before Mr. Justice Donges, when he was circuit court judge, and resulted in a judgment of nonsuit. The second trial was also before the same jurist and again resulted in a judgment of nonsuit. On appeal the second judgment was unanimously affirmed by this court. 107 N. J. Law, 285, 153 A. 649.

The present, and third, suit was tried before the late circuit court judge William Eldredge, and resulted in the following verdicts against the appellant: (a) For Robins and Brogan, $2,944.02; (b) for Frank McGuigan, $6,846.66; and (c) for Robins & Brogan and McGuigan, $28,080. Judgments based on these verdicts were entered under one judgment.

A rule to show cause, with exceptions taken at the trial expressly reserved, was granted by the learned trial judge to the appellant. The reasons assigned were that the verdicts were the result of prejudice, passion, and bias on the part of the jury and that each verdict was excessive. The memorandum filed by the trial judge, on the disposition of the rule, discloses that it was argued that since verdict (c) of $28,080, awarded for loss of profits to all respondents, was so excessive it shows that it was the result of passion, prejudice, and mistake on the part of the jurors, it follows that all the verdicts were the result of like infirmities, and therefore they should all be set aside.

The court below, being of the opinion that verdict (c) alone was excessive but not to the extent that it should vitiate the other verdicts, vacated and dismissed the rule to show cause on verdicts (a) and (b) and ordered that the judgments based on the two verdicts be made absolute and granted a new trial as to the judgment based on verdict (c) as to damages only.

The propriety of these judgments, as well as the disposition of the rule to show cause, are before us for review.

The instant suit relates to the same controversy which was the subject-matter of the two prior suits between the same parties. It arises out of a claim made by respondents against appellant for damages for loss sustained by reason of the alleged refusal on the part of the appellant to permit respondents to redeem certain trucks, seven in number, which had been repossessed by appellant because of the nonpayment of the installments due under the conditional sales contracts between the parties, for said trucks.

The basic question presented for decision on this appeal, therefore, is the same question that was present on the last appeal (107 N. J. Law, 285, 153 A. 649); i. e., whether the tender made by the respondents in their efforts to redeem the trucks (under section 18, P. L. 1919, c. 210, p. 461 [Comp. St. Supp. 1924, § 182—104]) was unconditional and thus valid, or conditional and thus invalid.

A brief resume of the facts is necessary in order to more fully understand the situation herein presented. They are as follows:

Robins and Brogan were partners engaged in the general hauling business, and McGuigan had become associated with them as a partner in the profits of that business. The first-named partners had a conditional sales agreement with appellant for two trucks, which agreement was dated August 14, 1926 (Exhibit P-1), and designated as the New Jersey contract; McGuigan had a like agreement with appellant for five trucks, which was dated May 27, 1927 (Exhibit P-2), and was designated as the Pennsylvania contract. Each contained, among its several provisions, the following: "Upon default in the payment of the principal or interest of any said notes (given in pursuance to the agreement) then the vendor may at its option declare all of the said notes immediately due and payable and the same shall thereupon become due and payable;" and, "The purchaser shall at his own, expense keep the property free of all liens * * *."

Prior to July, 1927, there was a default under both agreements. $1,400 was due under Exhibit P-1, and $800 was due under Exhibit P-2. On July 16, 1927, a levy was made by the sheriff of Philadelphia county, Pa., on the seven cars under a judgment recovered by one Howard E. Zeigler against Robins and Brogan only. Appellant immediately posted a bond of $5,700 to redeem the trucks, and on July 21, 1927, they were redeemed. Notwithstanding this redemption, the trucks continued in possession of respondents. And on July 25, 1927, appellant gave respondents the statutory notice (chapter 210, P. L. 1919, p. 461, § 18 [Comp. St. Supp. 1924, § 182—. 104]) of ten days within which to redeem the trucks upon the payment of "* * * all past due installments with interest, together with expense of retaking, keeping and storage * * *," otherwise the same would be sold in accordance with the provisions of the act of our state. On the same day a like notice was also given to McGuigan "* * that if at the expiration of ten days from July 21st you do not tender the amount of all unpaid installments, with interest, * * *" it would proceed to sell in accordance with the act of Pennsylvania.

It is conceded that the portions of the Uniform Conditional Sales act herein involved are the same in New Jersey and Pennsylvania. We desire to mark the fact that appellant itself stated in its answer that Ziegler, who had recovered the judgment above stated, did on July 25, 1927, abandon all claims to the two trucks under Exhibit P-1, and that the same remained in possession of appellant from the time of repossession until they were sold in accordance with the statute. Respondents proceeded to redeem the trucks, McGuigan called on Mr. Woehling, appellant's manager of its Philadelphia branch, On July 27, 1927, McGuigan came and told Woehling that, pursuant to arrangements, he was prepared to pay the amount of the defaulted notes. Woehling would not accept payment for the stated reason that he was instructed by appellant not to accept anything unless it was the full payment due on the trucks and that such payment was to be made to its attorneys. He said: "It is entirely out of my hands." McGuigan got in touch with Messrs. Mount and Henderson, of the law firm of Rawle & Henderson, appellant's attorneys.

On July 30, 1927, respondents, together with their financial backers, Messrs. Bechtold and McManus, prepared to pay the moneys necessary to redeem the trucks, conferred with Messrs. Mount and Henderson. The solution to the basic question herein involved depends largely on what was said and done at this pivotal conference. It should here be observed that this court, in 107 N. J. Law, 285, 153 A. 649, 650, held that the tender made by respondents was invalid, "for the reason that the tender was accompanied by a condition which plaintiffs were not entitled to impose, viz., that defendant should 'make out the titles to Bechtel and McManus.'"

Returning to this conference of July 30, 1927, which incidently was on a Saturday, and the last day on which respondents could redeem, it appears that three propositions were discussed. They are pointed out in the court's charge and are as follows: (1) The first proposition offered by Robins was that Henderson and Mount should accept $12,020 and convey title to the trucks to McManus and Bechtold. The court held, and properly so, that it was not a good tender. It carried an obligation not imposed on appellant under the contract. (2) The second proposition provided that $12,020 should be paid to the Mack Truck Company, through its attorneys, and that title should be conveyed to Robins, Brogan, and McGuigan and there should be entered on the sales, on the contracts liens of the judgment in favor of McManus and Bechtold. The court below held, and again correctly so, that this was a conditional tender.

Bearing in mind that appellant, for the first time at the last-stated conference, insisted on some sort of indemnification against loss by reason of its having posted the bond with the sheriff of Philadelphia county before it would allow respondents to redeem the trucks, and that the expressed willingness of Woehling to accept the amount of the defaulted notes was withdrawn, although McGuigan came prepared to pay them, and that the tender was not unlike all prior tenders made, we approach what is described as the third proposition discussed at this conference. (Incidently respondents indicate that there was proof concerning this proposition at the former trials.) At all events, it arises out of the following testimony of Robins:

"Q. What was the third proposition? A. The other proposition was to transfer the title to Robins and Brogan and McGuigan, and put the encumbrances on the back of each and every title for each and every truck in the amount it was worth in favor of McManus and Bechtold, and for the Mack Company to accept the check, and continue to hold the trucks until we could take care of them, or leave the trucks go back into the hands of the sheriff, as we would redeem them from the sheriff as soon as we could.

"Q. And they refused that? A. They re fused that.

"Q. They refused all three of these propositions? A. They refused everything we offered them."

Robins' testimony was corroborated. The court described the proposition as follows: "Robins testified that there was shown an of for by himself, or an offer by McManus in his behalf, Robins acting as spokesman for McManus, that title...