Veterans Loan Authority v. Rozella

Decision Date27 June 1952
Docket NumberNo. A--187,A--187
Citation90 A.2d 505,21 N.J.Super. 1
CourtNew Jersey Superior Court — Appellate Division

Paul Colvin, Dover, argued the cause for the appellant.

Nelson K. Mintz, Morristown, argued the cause for the respondents (Milford Salny, Netcong, attorney).


The opinion of the court was delivered by


This appeal was argued upon an agreed statement in lieu of record. Upon our suggestion, counsel consented that the statement be supplemented by the pleadings and the promissory note on which the action was brought, and the conditional sale agreement which was security for the note.

Thomas V. Rozella bought from Barney's Furniture Co., household furnishings for $433, paid $13 on account and agreed to pay the balance, with interest, in monthly instalments of $24.08 each. Title was retained by the buyer and a conditional sale contract was executed. At the same time, Rozella gave to the seller a promissory note for the same amount and containing the same terms. The note contains no reference to the conditional sale contract, but the latter states that the buyer's agreement to pay is 'evidenced' by the note and that the note is 'an instrument separate and apart from this contract.' Barney's immediately sold the contract and the note to the Second National Bank of Paterson. In time, Rozella defaulted in the payments due and the bank elected, pursuant to the terms of both instruments, that the unpaid balance become immediately due and payable. Next, the bank, by its agent, repossessed the chattels that were the subject of the sale and resold them at private sale to Barney's for $79.15. Later, the bank assigned the contract and the note to the plaintiff.

The action is brought against Rozella and his wife on the note for the unpaid balance of $237.99, as stated in the complaint. Mrs. Rozella was joined as an endorser. The defendants answered that the note had been paid, and filed a counterclaim in the nature of a set-off in which they alleged at the retaking and the private resale had discharged the debt. The court, sitting without a jury, found that the debt evidenced by the note had been paid and so rendered judgment for the defendants. We find no error in this action.

The buyer, Rozella, had not paid at least 50% Of the purchase price of the furnishings at the time of the retaking, and therefore R.S. 46:32--26, N.J.S.A. (§ 20 of the Uniform Conditional Sales Act) became applicable. The bank might either retain the chattels as its own or resell for the account of the buyer. But if it chose to resell, it must do so 'in the manner, at the place and upon the notice prescribed' by R.S. 46:32--25, N.J.S.A., that is, at public auction, on notice to the buyer. Stark & Son v. Licastro, 127 N.J.L. 380, 22 A.2d 768 (Sup.Ct.1941). R.S. 46:32--29, N.J.S.A., provides that 'where there is no resale, the seller may retain the goods as his own * * * and the buyer shall be discharged of all obligation.' Gang & Gang, Inc., v. Rogalsky, 124 N.J.L. 207, 11 A.2d 239 (Sup.Ct.1940). The seller, in lieu of money, keeps the goods and in this manner the debt is satisfied. In our case, the bank resold, but not at public auction or on notice to the conditional vendee. That was not a resale within the intent of § 29, which must be taken to mean a resale in the manner prescribed by § 25. The bank sold for its own account and not for the account of Rozella. Since the bank, by the private sale to Barney's, put it out of its power to...

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9 cases
  • Friendly Consumer Discount Co. v. Foell
    • United States
    • New Jersey Superior Court — Appellate Division
    • 12 March 1956
    ... ...         On February 23, 1955 plaintiff made a loan to defendants in the face amount of $2,160, which actually netted ... Radcliffe, 3 N.J. 430, 435, 70 A.2d 493 (1950); Veterans Loan Authority v. Rozella, 21 N.J.Super. 1, 90 A.2d 505 (App.Div.1952), a ... ...
  • C. I. T. Corp. v. Haynes
    • United States
    • Maine Supreme Court
    • 5 August 1965
    ... ... conditional vendee for a deficiency judgment, is by weight of authority enforced. Massillon Engine & Thresher Co. v. Wilkes, 82 S.W. 316, col. 2, ... 678, 39 N.E.2d 293); Veterans Loan Authority v. Rozella et ux., 21 N.J.Super. 1, 90 A.2d 505, [1, 2] 506 ... ...
  • Franklin State Bank v. Parker
    • United States
    • New Jersey District Court
    • 10 October 1975
    ... ... Mallicoat v. Volunteer Finance and Loan Corp., 57 Tenn.App. 106, 415 S.W.2d 347 (App.Ct.1966) ... 161, 165, 155 A.2d 787 (App.Div.1969); Veterans.2d 787 (App.Div.1969); Veterans Loan Authority.2d 787 (App.Div.1969); Veterans Loan Authority v. Rozella ... ...
  • Veterans Loan Authority v. Wilk
    • United States
    • New Jersey Superior Court — Appellate Division
    • 18 April 1960
    ... ... This, too, negated any intent on its part to discharge the obligation ...         Veterans Loan Authority v. Rozella, 21 N.J.Super. 1, 90 A.2d 505 (App.Div.1952), relied upon by defendant, is not in point. That case involved a conditional sales contract, controlled by the ... ...
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