On defendant's appeal from the District Court.
For the appellant, David Green and Duane R. Dills (of the New York bar.)
For the respondent, Charles S. Gray.
Before Justices Parker, Black and Bodine.
The opinion of the court was delivered by
PARKER, J. This case raises the interesting question, somewhat novel in this state, whether the conditional vendor of a chattel pursuant to the Conditional Sales act (Pamph. L. 1919, p. 461), or the assignee of the seller's interest under the contract, which amounts to the same thing, may recover after default against a third party for injury done to the chattel by the negligence of said third party before default, notwithstanding contributory negligence of the vendee.
The agreed state of the case shows that the plaintiff's assignor, the Newark Flint Company, made a written contract of conditional sale of an automobile to Frank Scagliola in July, 1925, and assigned its interest in that contract to the plaintiff; that in September, 1925, the automobile, by reason
of the joint negligence of Scagliola and the defendant, came into collision with the defendant's car and was damaged to the amount of $115; that in October, 1925, Scagliola defaulted in his payments. The case does not show that the plaintiff re-took the car after such default, but this seems immaterial. The trial court held, first, that the plaintiff at the time of the accident had no such interest in the automobile sold to Scagliola as entitled it to recover against the defendant; and, secondly, that if it did have such interest, it was barred of recovery by the contributory negligence of Scagliola, the conditional vendee.
We think the first proposition is clearly erroneous. By the very language of section 1 of the statute it is provided that, "in this act 'conditional sale' means (1) any contract for the sale of goods under which possession is delivered to the buyer and the property in the goods is to vest in the buyer at a subsequent time upon the payment of part or all of the price, or upon the performance of any other condition or the happening of any contingency; or (2) any contract for the bailment or leasing of goods by which the bailee or lessee contracts to pay as compensation a sum substantially equivalent to the value of the goods, and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming, the owner of such goods upon full compliance with the terms of the contract." From this language it seems clear that in any event the plaintiff had and retained the general property in the chattel subject to certain qualifications in the act not affecting this case; and that that general property would remain in the plaintiff until full payment had been made. It needs no argument that the owner of a general property in a chattel is entitled to recover for damage to that chattel, at least provided there has been no recovery on behalf of the owner of the special property for the same cause of action.
The second proposition we also consider to be erroneous, and upon the fundamental ground, presently to be discussed more at length, that if the plaintiff would not be liable in damages for any injury inflicted by the negligence of Scagliola while using the car, and we think it clear that plaintiff
would not be so liable, then by the same token the plaintiff cannot be barred of its right of recovery by negligence of Scagliola which is contributory to a collision in which ...