Clapp, Jayne and Hughes. The opinion of the court was delivered by Clapp, S.j.a.d.
[47 NJSuper Page 209] Plaintiff brought this action in the Atlantic County District Court against Thomas H. Lawley, trading as Lawley Motor Company, to recover $1,000 for breach of his contract with it, and against Stanley Facey for the deficiency of $1,000 due under a conditional sales contract. The court by its judgment dismissed the action against Lawley and entered judgment by default against
Facey for $1,000. Plaintiff appeals from the judgment insofar as it was entered in favor of Lawley. No appeal is taken with respect to the judgment insofar as it went against Facey.
Under the contract with Lawley, who is an automobile dealer in Atlantic City, plaintiff agreed to purchase certain commercial instruments, including conditional sales contracts covering automobiles; and Lawley agreed that if a conditional vendee defaulted in the purchase of an automobile, he (Lawley) would among other things repurchase the automobile for an amount equal to that owing by the vendee at the time of the default, provided the automobile was tendered to him (Lawley) within 90 days after the default.
After making this contract, and on November 20, 1953, Lawley sold Facey a new 1953 Nash under a conditional sales contract for a total time price of $4,118.50, less a down payment of $1,056, leaving due a time balance of $3,062.50 payable in 30 monthly installments. On the same day, Lawley assigned the contract to the plaintiff, but did not sign the printed form of guaranty attached to the assignment. Facey thereafter defaulted under the contract. However on March 11, 1955 the contract was refinanced, and a new conditional sales contract, initiated by the plaintiff, was entered into between Lawley and Facey covering the same auto, under which a further finance charge of $262.72 was added to the $1,460 due on the old contract, and the total, $1,722.72, the new time price, was made payable over a 24-month period, thus reducing the monthly charges. The contract was marked "Ref" in two places, indicating (to the parties) that it was a refinance agreement. Lawley assigned the refinance contract to the plaintiff.
Facey apparently paid $646.02 on the refinance contract, leaving $1,076.70 due, when he again defaulted. Shortly thereafter plaintiff took possession of the auto in Easton, Pennsylvania, where it had been abandoned, and gave notice that the auto was to be sold in Easton. N.J.S.A. 46:32-25 requires that the sale provided for by the Uniform Conditional
Sales Act be had "in the state where [the goods] were at the time of the retaking."
Lawley's entire argument hinges on the fact that the notice of sale, though it states the true balance due under the refinance contract, namely, $1,076.70, is nevertheless nugatory since it seems to turn on a default in the original contract. The notice reads as follows: