On appeal from the Supreme Court, whose opinion is printed at 14 N.J. Mis. R. 907.
For the defendant-appellant, Harold Simandl.
For the plaintiff-respondent, Chivian & Chivian.
The opinion of the court was delivered by
WELLS, J. This is an appeal from an affirmance by the Supreme Court of a judgment entered in the District Court of the city of East Orange in favor of the plaintiff, A.B.C. Credit Corporation, and against the defendant, Big Bear Used Car Company, Incorporated. The judgment was based upon proceedings in replevin and was entered by direction of the court.
On April 12th, 1935, one Thomas Garland, who had previously been convicted of crime, purchased in Brooklyn, New York, under the alias of Thomas Corbett, an automobile on a conditional sale agreement from Kaufman Motor Sales of Brooklyn, which provided, inter alia, that title to the automobile should not pass to the purchaser until the amount was fully paid in cash; that if the purchaser should violate any
of the conditions of the contract he would forthwith deliver the automobile to the seller, or would permit and authorize the seller, without notice or demand, with or without recourse to law, to take away the same. The agreement further provided that the purchaser would not remove or cause or permit the automobile to be removed from King's county, nor assign, sublet or hire out the same in any manner without having first obtained the written consent of the seller or such seller's assignee.
This contract was assigned by the said Kaufman Motor Sales to the plaintiff, and by it duly filed in King's county, New York.
On the day of purchase a bill of sale was executed by the said Garland under the name of Thomas Corbett, purporting to sell said automobile to himself as Thomas Garland and Garland took the car to Newark, New Jersey, and, using his right name, agreed to sell it to the defendant. Title papers were produced, approved by the department of motor vehicles of New Jersey, showing Thomas Garland to be the owner, with no incumbrance on the title. The defendant bought the car on April 13th, 1935, and paid a cash consideration.
On April 30th, 1935, the plaintiff learned that the car was in Newark, and duly filed the conditional sale contract in Essex county, New Jersey.
Plaintiff issued and served a writ of replevin on May 6th, 1935, and defendant filed a claim of property on the same day. The issue was tried before the District Court, with a jury, and judgment entered for the plaintiff by direction of the court. From an affirmance of this judgment by the Supreme Court this appeal is taken.
There is no contest as to the title claimed by the plaintiff, and the right of a conditional vendor's assignee to replevy a car upon unauthorized sale has been upheld by this court. General Motors, &c., Corp. v. Smith, 101 N.J.L. 154. The sole question to be determined here is whether it was necessary for the plaintiff to make a demand for ...