On appeal from the Monmouth County Circuit Court.
For the appellant, Edward R. McGlynn.
For the respondent Kaufman, Theodore J. Labrecque and Theodore D. Parsons.
For the respondent General Credit Corporation, Matlack & Lautman.
The opinion of the court was delivered by
PARKER, J. The suit was in replevin for an automobile which plaintiff sold by contract of conditional sale, duly recorded, to a corporation called Keyport Auto Sales Company, owned and controlled by one Morehouse, who, it is said, absconded after reselling the car to defendant Kaufman. The complaint alleged default by the Keyport company in the stipulated payments, and demanded judgment for possession. The defendant Kaufman was charged in the complaint simply as having wrongfully taken and as wrongfully holding possession of the car. His defense, as set up in the answer, was based on section 9 of the Conditional Sales act (Pamph. L. 1919 (at pp. 463, 464), providing that:
"When goods are delivered under a conditional sale contract, and the seller expressly or impliedly consents that the buyer may resell them prior to performance of the condition, the reservation of property shall be void against purchasers from the buyer for value in the ordinary course of business, and as to them the buyer shall be deemed the owner of the goods, even though the contract or a copy thereof shall be filed according to the provisions of this act."
Kaufman's answer averred that the Keyport concern was a dealer, well known to plaintiff as such, that plaintiff delivered the car in question to the Keyport company for resale, and that defendant Kaufman purchased in good faith from that company and was consequently entitled to hold the property free of the conditional sale agreement held by the plaintiff.
The issue thus raised was, however, complicated by the fact that defendant Kaufman had not paid the Keyport company
in cash, but the sale to him had been financed by General Credit Corporation which had taken over the Keyport company's interest in Kaufman's conditional sale agreement with that company, paid it the balance on the contract and after this suit was begun on default by Kaufman, had seized and sold the car under the provisions of the agreement, and bought it in at its own sale. The General Credit Corporation before the sale petitioned to be admitted as defendant and gave a bond (which we do not find printed) presumably for return of the car in case of an adverse judgment. After the sale to General Credit Corporation the case came on for trial, and there was a verdict of "no cause of action" and judgment was entered in favor of both Kaufman and General Credit Corporation and against the plaintiff.
The grounds of appeal, as argued, in the order argued, are:
1. Refusal to direct a verdict for plaintiff on the ground that Kaufman was not a "purchaser" of the car in the ...