On appeal from the Supreme Court (Passaic Circuit).
For the defendant-appellant, Charles Blum.
For the plaintiff-respondent, H. Kermit Green.
The opinion of the court was delivered by
WELLS, J. This is an appeal from a judgment entered in the Supreme Court (Passaic Circuit), upon a verdict of a jury in favor of the plaintiff for $1,050. Action had been instituted in replevin for the recovery of a certain automobile,
during the course of the trial possession was waived and a verdict sought for money damages only.
One Ralph Atkins was a dealer in new and used Pierce Arrow and Lincoln automobiles, who transacted his financing on conditional bills of sale through the defendant corporation. On July 1st, 1931, Atkins sold a certain Pierce Arrow automobile to Van Harken on a conditional sale contract which was assigned to the defendant along with the original bill of sale. The contract was duly filed in Passaic county.
Some time before November 10th, 1931, Van Harken returned the automobile and received trade-in credit for the same on the purchase of a new Lincoln automobile. Payments amounting to $280 remained unpaid on the conditional sale contract, but there was testimony that Van Harken settled this claim by payment to Atkins.
Upon the return of the Pierce Arrow by Van Harken, Atkins called Agresti, manager of the defendant, and the one with whom all his dealings with defendant were carried on, and told him of the trade-in and that Van Harken would continue to make payments, although the automobile was being traded in. No objection to the trade-in was made by Agresti and the automobile was placed on Atkins' show room floor for exhibition and sale.
On November 10th, 1931, the plaintiff negotiated with Atkins for the purchase of the automobile, which negotiations were consummated on November 29th, 1931. At that time title papers were assigned to the plaintiff, in which there nowhere appeared the name of Van Harken, nor was any information given as to the previous conditional sale contract. The first title paper to the plaintiff was marked "duplicate," but the same was accepted by the department of motor vehicles, and a license issued. The plaintiff continued to use the automobile without question until June, 1933.
On June 6th, 1933, the plaintiff was induced by misrepresentations to release possession of the automobile to the defendant. Demand by the plaintiff for possession was refused on June 8th, 1933, and the action from which ...