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Fogel Refrigerator Co. v. Lamb

Decided: July 8, 1952.

FOGEL REFRIGERATOR CO., PLAINTIFF,
v.
ROSE C. LAMB AND MATTHEW THYSSEN, JOINTLY, SEVERALLY OR IN THE ALTERNATIVE, DEFENDANTS



Tenenbaum, J.c.c.

Tenenbaum

Plaintiff instituted suit upon a note made by the defendants to the plaintiff in the sum of $1,476, dated June 19, 1950, which was payable in equal successive monthly installments of $41, the first payment beginning August 7, 1950, and bearing interest at the rate of 6% per annum on the unpaid balance. Service of process was made upon the female defendant, and the suit proceeded against her alone.

The defendant made three monthly installment payments of $41 each and thereafter ceased reducing the obligation; the note recited, "Upon non-payment of any installment at its maturity, all remaining installments shall become immediately due and payable."

The complaint, as amended, acknowledged a credit to the defendant of $123, leaving a balance of $1,353.50, and in order to bring the controversy within the jurisdiction of this court waived the amount in excess of $1,000.

The defendant admits the execution of the note and contends that it was a part of an executed conditional sales contract. She advances five separate defenses, which in summary are: that the plaintiff took possession of the chattel and failed to make sale thereof under the provisions of the Uniform Conditional Sales Act, and thus she is discharged of further liability; additionally, at the time of the trial she was permitted to amend her answer to include the separate defense of satisfaction of any unpaid balance by repossession.

The female defendant advances a counterclaim in which she seeks damages from the plaintiff for failure to resell or to comply with the provisions of R.S. 46:32-24 to 46:32-27, 46:32-29.

At the trial the undisputed testimony adduced the making and delivery of the note and the delivery of the chattel, which was a refrigerated beverage dispenser; that she sold her

business and equipment to another, who was dissatisfied with the operation of the equipment involved and so informed the plaintiff; that the chattel had been removed from the interior of the building on the premises and was stored about the exterior thereof under some form of protective covering, from whence it was taken into the plaintiff's possession; that the chattel is still in the plaintiff's possession and that there was no resale thereof.

The testimony is in conflict as to whether the plaintiff repossessed the chattel in satisfaction of its claim, or whether it was taken into its possession to protect it from deterioration. Plaintiff strongly urges the latter position, and upon this theory seeks to escape the necessity for complying with the Uniform Conditional Sales Act relating to resale.

The plaintiff had the undisputed right to repossess the chattel. Having done so, could it retain the equipment and institute suit without first having made sale of the chattel?

The Supreme Court in a per curiam opinion, General Electric Contracts Corporation v. Band , 186 A. 684 (Sup. Ct. 1936) (not reported in the state reports), dealt with a situation which involved the sale of an electric refrigerator upon a conditional sales contract providing for monthly installment payments. There was a default in the payments and thereupon the vendor's agent informed the vendee that it proposed to repossess the refrigerator and recover the unpaid balance. Notwithstanding the statement, there never was any actual repossession. The court held:

"The fact that the seller has other remedies does not limit or defeat his right to insist upon the payment of the price by the buyer. This right could only be limited in the event he actually retook physical possession of the refrigerator, and in that event, he would still have a right to resell the refrigerator, purchase at his own sale, and hold ...


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