On petition for re-argument.
For the appellant, Harry Green.
For the respondent, Howard Isherwood.
This application is based upon two grounds:
First, because this court affirmed the judgment of the Circuit Court upon the ground that the plaintiff below did not have title to the motor vehicle as required by the act entitled, "An act relating to and regulating the sale and purchase of motor vehicles requiring presence of manufacturer's number on same, requiring issuance of bill of sale and assignment of same and providing penalties therefor," approved April 15th, 1919 (Pamph. L. 1919, p. 357), and its supplements and amendments, and such holding nullifies and overrules the cases of General Motors Acceptance Corp. v. Smith, 101 N.J.L. 154; Commercial Credit Corp. v. Coover, 101 Id. 530, and Huber v. Cloud, 102 Id. 181, in this court, and Belmont Motors Corp. v. Irvington Concrete Co., 4 N.J. Mis. R. 322; Edson & Co. v. Shuster, 3 Id. 428, and Hare & Chase v. Tomkinson, 129 A. 396, in the Supreme Court, all of which cases overrule Security Credit Co. v. Whiting Motor Co., 98 N.J.L. 45, decided in the Supreme Court in 1922.
Our re-examination and reconsideration of these cases confirms our previous conclusion that they have no conclusive or controlling bearing upon the case sub judice.
In none of the cases was the title or right of possession of the vendor in the conditional sale transaction questioned.
In General Motors Corp. v. Smith, supra, the right of the plaintiff to maintain an action in replevin against the conditional vendee was attacked upon the ground that it was merely the assignee of the conditional bill of sale, holding no absolute bill of sale or assignment thereof under Pamph. L. 1919, p. 357, supra.
It is true that this court there held that the Conditional Sales act (Pamph. L. 1919, ch. 165) "stands by itself" and is not to be read with or have engrafted upon it the Motor Sales act of 1919, supra, and that the assignment from the conditional vendor gave to the plaintiff every right that such seller had including any and every right to secure possession of the car by proceedings in replevin. As we have before stated, the title and right of possession of the plaintiff and its assignor, the original vendor, was not questioned. Under the facts and circumstances of that case the opinion correctly and accurately states the law as applicable thereto.
In Commercial Credit Co. v. Coover, supra the contest, in an action in replevin, was between the assignee of a conditional sales agreement and the vendee thereunder, the latter claiming that, after executing such conditional sales agreement, he paid the full purchase price to his vendor, but, had not, prior to the assignment of the conditional sales agreement, received from his vendor an unconditional bill of sale. There is no analogy between this case and that now before us.
In Huber v. Cloud, supra, the only question involved was the description of a motor vehicle in a conditional bill of sale. We held that the description was sufficient to identify the car and that in such an instrument, like in a chattel mortgage, such a description ...