On appeal from the Passaic District Court.
For the appellants, Cohn & Kohlreiter.
For the respondents, Feder & Rinzler.
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. The trial judge of the Passaic District Court, relying on the opinion of this court in which a former judgment of no cause of action, on the same same issues between the same parties, was reversed (11 N.J. Mis. R. 857; affirmed solely by reason of an equally divided court, 113 N.J.L. 514; application for reargument denied, motion No. 36, October term, 1934, Court of Errors and Appeals), directed a verdict in favor of the plaintiff and against the defendants.
Appellants, who were the defendants below, filed fifty-four specifications of determination with which they are dissatisfied in point of law. They are argued under four points, substantially as follows: (1) That the trial court erred in refusing to permit in evidence the conditional sales contract; (2) that the trial court erred in refusing to permit proof to substantiate the defense of plaintiff's failure to properly
repossess and resell the automobile, which was the subjectmatter of the note and the conditional sales agreement, in the manner provided by chapter 210 (Pamph. L. 1919, p. 461), and thus they were relieved from liability in the premises. (Under this point specifications 5 to 53, inclusive, are argued.) (3) That the trial court erred in denying the motion for a directed verdict in their favor; (4) that the trial court erred in granting appellee's motion for a directed verdict in its favor. It is stated "that the court's refusal to grant appellants' motions, therefore, forms the major portion of appellants' specifications of determination with which it is dissatisfied in point of law." Thus we have before us exactly the same question which received our consideration and determination on the reversal of the first judgment of no cause of action, namely, did the note and the conditional sales agreement constitute but one obligation, or, did the note, in issue, constitute an obligation independent of the conditional sales agreement?
This court, in its opinion, 11 N.J. Mis. R. 857, among other things said: "The points argued are in substance that the conditional sales agreement was irrelevant to the issue, that it was improperly submitted to the jury for consideration * * *" and "* * * there was error in the instruction to the jury by the judge with respect to the effect of the conditional sales agreement as a defense to the action of the note. There was no proof showing that the note and the agreement, which were received in evidence, had any relation in a contractual sense the one to the other." It is argued, in effect, that we should now hold that it was error for the trial judge to follow the opinion of this court. The Court of Errors and Appeals did not so hold. The trial judge relied, and properly so, on the opinion of this court; and this court is, of course, bound by its own opinion.
It would perhaps suffice to stop at this point. But it is strongly argued: First, that the endorsement on the note of the following sentence: "This note covers deferred installments under a conditional sale contract made this day between payee and maker thereof," is very strong proof of the fact that the conditional sales agreement was part of the note in
question. There are at least two dispositive answers to this contention. (1) The quoted wording on the note was before us on the first appeal; (2) the wording employed does not justify the conclusion that the conditional sales agreement was to be a part of the note. If it were so intended it was, of course, a simple matter to so state it. The mere reference to the conditional sales agreement is not sufficient to make it part and parcel of the obligation ...