On appeal from the Supreme Court.
For the appellant, Abraham Alboum.
For the respondent, Robert Carey, Jr.
The opinion of the court was delivered by
PARKER, J. The suit was in trover for the value of three used motor trucks seized and sold by the corporate defendant acting through defendant Marks as bailiff, by virtue or under color of one or more conditional sales contracts covering the three trucks and five others, between the Star corporation as vendor and Edward Shinn, Jr., and Anthony Spatuzzi as vendees. Plaintiff is the wife of Anthony Spatuzzi; and her claim was that the seizure and sale of the three trucks was illegal because as to the three and one other, the contracts [119 NJL Page 378] with Shinn and her husband had been satisfied and superseded by the transfer of vendees' interest therein to her by Shinn and Spatuzzi and a new conditional sale contract between the Star corporation and herself, which had not been breached. With the precise legal steps taken for this novation or substitution, we are not particularly concerned. The questions at the trial were, in this aspect, the bona fides of the shift from husband to wife, and of the new conditional sales contract for four specified trucks, running to the plaintiff wife as vendee for a stated consideration of $685, payable $385 in three months, and $300 in twelve months. For the plaintiff the testimony was that Shinn and her husband, who had been in a sort of partnership, formal or informal, had purchased the eight trucks by conditional sales, and had agreed to separate, each to have four; that plaintiff, claiming to have advanced money to her husband, required the vendees' interest in the four trucks to be transferred to her; and that to accomplish this, the husband surrendered his interest to the Star corporation, and the latter made a new contract of conditional sale to the wife, the $685 being substantially half of what remained unpaid on the eight trucks. This new contract was duly executed and put in evidence. Defendant corporation claimed in substance that it was a mere cover and intended to protect the husband from certain real or supposed creditors. This was of course contradicted, and was left to the jury by the trial judge. That course was, if anything, too favorable to the defendant, as we have difficulty in seeing how the Star corporation, a party to the transaction and a signatory to the new contract, was entitled to attack it, and in an action at law. However, the jury disposed of this claim on the facts and in favor of plaintiff. With respect to the new contract running to her for four trucks, her claim was that the payment of $385 in three months was more than met by the sale of one of the trucks for $525 and the receipt of the proceeds by the defendant. The sale and receipt of the money were not disputed, but defendant corporation applied it, not to the $685 item, but to the former contract with Shinn and Spatuzzi as still a live contract. This was
the gravamen of the plaintiff's case. The questions of fact were fully and fairly laid before the jury in a careful charge, and resolved in favor of the plaintiff.
We take up the legal matters involved.
The first claim for appellants is that there was error in refusing to nonsuit; and this is put upon six grounds in the brief. We find only three urged at the trial. The first was that plaintiff had defaulted. But this seems to have been predicated on the hypothesis that the prior contracts with Shinn and Spatuzzi were still in force. If this was in dispute on the facts, the dispute was to be settled by the jury. The $685 contract with plaintiff was clearly proven, and if valid, the next question, naturally for the jury, was whether the $525 collected for one of the trucks described therein was applicable to that contract. If so, there was no default.
The second point was that there should have been a demand, and that there was none. There was evidence of a demand before the bailiff's sale, or a written claim of property, which would amount to the same thing; but apart from this the court ruled properly that no demand was necessary as a basis for the suit, as the property had been actually converted. Woodside v. Adams, 40 N.J.L. 430, cited for appellant.
The third ground relied on at the trial requires the recital of some additional facts. The trucks appear to have been stored with a corporation called International Excavating Company, which claimed a lien against Shinn and Spatuzzi for storage or service, or both, and had undertaken to sell to satisfy that lien. The Star corporation intervened in some way, with the result that the sale for garage lien was apparently abandoned, the sale under color of the Shinn and Spatuzzi contracts proceeded, and International bought in at that sale. International was made a party defendant in this suit, and as to that company, there was a nonsuit, the propriety of which is not now before us.
The claim of International was not adjudicated and was specifically denied by plaintiff and her husband. If a failure of the vendees to pay International was a "default" for which the contract ...