Stride v. Martin

• Decision Date: 02 March 1945
• Docket Number: 19.
• Citation: 41 A.2d 489,184 Md. 446
• Parties: STRIDE v. MARTIN et al.
• Court: Maryland Court of Appeals

41 A.2d 489

184 Md. 446

STRIDE v. MARTIN et al.

No. 19.

Court of Appeals of Maryland

March 2, 1945

Appeal from Baltimore City Court; Eugene O'Dunne, Judge.

Action by Ruth B. Stride against George H. Martin and Ralph W Martin, trading as Martin Bros., to recover payments and deposits made because of defendant's alleged violation of the Retail Instalment Sales Act, Code Supp. 1943, art. 83, § 116, in connection with the sale of an automobile to plaintiff. Verdict and judgment for defendants, and plaintiff appeals.

Reversed and judgment entered for plaintiff.

Abraham A. Light, of Baltimore, for appellant.

J Cookman Boyd, Jr., of Baltimore, for appellees.

Before MARBURY, C.J., and DELAPLAINE, COLLINS, GRASON, MELVIN, HENDERSON, and MARKELL, JJ.

MARKELL Judge.

On February 19th, 1944, the plaintiff (appellant) bought from the defendants (appellees) a used 1936 Packard automobile for $395 cash price, plus $64.40 'finance charge', $28.50 insurance and $10.55 title, tax, and transfer charges and recording fees. At that time she made a cash payment of $71.05 (including a $10.00 deposit on February 8, 1944), and traded in a (used 1936 Plymouth) car, for which she was allowed $63.80 ($135.00 for the car, less a lien of $71.20), leaving a balance of $363.60, to be paid in 12 (monthly) instalments of $30.30 each. On February 21st the defendants paid the lien on the Plymouth and got the certificate of title from the lienor, and also began repairs and improvements to the Plymouth which cost about $200. The plaintiff had not assigned the certificate; the defendants did not ask her to do so.

The plaintiff signed a 'conditional sale contract', dated February 19th, 1944, between 'the undersigned Seller' and 'the undersigned Buyer', on a printed form prepared by counsel for the Automobile Trade Association of Maryland in triplicate, containing 'instructions to dealer' to 'give pink copy to buyer, retain green copy, white copy is for record' and that the form 'must be made out in triplicate, all blanks filled in'. The plaintiff received a carbon copy, designated 'buyer's copy', bearing her signature to the contract and also to an 'acknowledgment by buyer', viz: 'Buyer hereby acknowledges receipt of an exact, executed copy of this contract at time of execution hereof.' She testified that she never received any other copy of the contract; this testimony is uncontradicted. One of the defendants testified that her copy was 'a copy they usually give' the buyer. This copy does not bear the defendants' signature or their names. Cf. Code, 1943 Supplement, art. 83, § 117(a). It contains unfilled blanks for mention and description of the traded-in car [cf. sec. 117(a)(4)], for the time of the instalment payments [cf. sec. 117(a)(10)], for 'date of signature of buyer', name and signature of seller and addresses of both [cf. sec. 117(a)], besides several correct figures (e.g., 'finance charge' and cost of insurance) in wrong blanks [cf. sec. 117(a)(6)(9)]. There is no evidence that the plaintiff was prejudiced by the fact that the copy received by her was not 'signed by the seller.'

The plaintiff soon became dissatisfied with the Packard. After taking it back to the defendants several times for correction of alleged defects, on February 24th she left it with the defendants and asked for 'her money back' and the Plymouth. The defendants refused to comply with her request, but did not tell her they had made repairs or improvements on the Plymouth. She did not then mention the Retail Instalment Sales Act. On February 28th they wrote her that they had 'repossessed' the Packard 'as of February 26th, 1944', and that 'to redeem it' she 'must pay off the entire balance of $363.60'. As she was not then in default, they say this letter was a 'mistake'--which they did nothing to correct. She consulted counsel and demanded, under the Retail Instalment Sales Act, a refund of all payments and deposits made. On March 11th the defendants' counsel wrote the plaintiff's counsel that 'there has been no departure from any law which entitles your client to the action demanded'; the letter did not mention the Plymouth, On March 21st the defendants wrote the plaintiff that she had 'defaulted' in her 'first note payment' on the Packard. Later they sold the Packard for $395.

On April 24th the plaintiff brought suit under the Speedy Judgment Act for $134.85 (the cash payment of $71.05 plus the allowance of $63.80 for the Plymouth), claimed under the Retail Instalment Sales Act (art. 83, sec. 116, Acts of 1941, ch. 851). The defendants disputed the whole claim. Trial before the court without a jury resulted in a verdict and judgment for the defendants, from which this appeal is taken.

The Retail Instalment Sales Act provides:

'116. (Form and Delivery of Instalment Sale Agreements.) (a) Every instalment sale agreement shall be evidenced by an instrument in writing containing all of the agreements of the parties. It shall be signed by all the parties before the seller delivers to the buyer any of the goods covered by the agreement.

'(b) At or before the time the buyer signs the instrument, the seller shall deliver to him an exact copy of it. If that copy was not executed by the seller, then unless the seller within fifteen (15) days after the buyer has signed, delivers to him a copy of the instrument signed by the seller, the agreement and the instruments signed by the buyer shall be absolutely void without any action by the buyer, and the seller shall immediately refund to the buyer all payments and deposits therefore made.

'(c) Until the buyer signs an instalment sale agreement and receives a copy of it signed by the seller----

'(1) The buyer or prospective buyer has an unconditional right to cancel the agreement or prospective agreement and to receive immediate refund of all payments and deposits made on account of or in contemplation of the agreement; a request for such refund shall operate to cancel the agreement or prospective agreement.

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'(d) Any written acknowledgment of delivery of a copy of an instrument shall be printed in 12-point bold type or larger and, if contained in the agreement, shall be printed immediately below the signature to the agreement and shall be independently signed.

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'135. (Waivers by the Buyer.) No act, agreement, or statement of any buyer in any instalment agreement, shall constitute a valid waiver of any benefit or protection under the provisions of this sub-title.

'136. (Violations of Sections 116, 117, 118.) (a) Whenever an instalment sale agreement does not contain the material required by Sections 116 and 117 of this subtitle or the seller fails to deliver a copy to the buyer, no seller or holder of such agreement shall collect or receive any finance, delinquency or collection charge from the buyer, except that a written acknowledgment of the delivery of the contract by the buyer pursuant to Section 116 shall be conclusive proof of such delivery as between the buyer and any assignee of the instalment agreement, without actual knowledge to the contrary. * * *'

At the argument counsel differed in their interpretation of the trial court's brief statement of the grounds of its decision'. General Rules of Practice and Procedure, Trials, Rule 9(a). We have considered all grounds suggested by the trial court or by counsel, but we are unable to concur in the conclusion. This Court 'may review upon both the law and the evidence' and 'may affirm, reverse, modify or remand, as in appeals from equity'. Rule 9, supra.

The Retail Instalment Sales Act was enacted in 1941 after extended consideration and investigation. Joint Resolution No. 8 of 1939 directed that the subject be investigated by the Legislative Council, who were to...