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Miklos v. Liberty Coach Co.

Decided: February 7, 1958.

JOHN MIKLOS AND HELEN MIKLOS, PLAINTIFFS-APPELLANTS,
v.
LIBERTY COACH CO., INC., AND BORDENTOWN TRAILERS SALES INC., DEFENDANTS-RESPONDENTS



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[48 NJSuper Page 593] Plaintiffs appeal from an order of the Superior Court, Law Division, entered on motion

of defendant Liberty Coach Co., Inc. (Liberty), setting aside the service of process allegedly made upon it.

Liberty, an Indiana corporation, manufactures home trailers. On June 29, 1955 plaintiffs purchased a new 1955 Liberty trailer through defendant Bordentown Trailer Sales, Inc. (Bordentown), a New Jersey corporation doing business near Bordentown, N.J. After delivery plaintiffs found that the trailer was damaged and defective. They subsequently returned it to Bordentown which purportedly resold it, but no part of the $2,218.32 paid on account has ever been refunded to plaintiffs. They thereupon brought the present action, the amended complaint naming both Bordentown and Liberty as defendants, and seeking return of the downpayment on the theory of rescission, and damages based on warranty, both express and implied. Among the counts are several demanding damages for injuries suffered by plaintiff Helen Miklos as a result of the defective condition of the mobile unit.

Service of process was made upon Liberty by serving Bordentown through its president Vincent Buettner as "registered agent" of Liberty in this State, which, admittedly, he was not. Liberty, appearing specially, then moved for an order quashing the purported service, the motion being supported by affidavits of an investigator and of its president Spencer. The investigator's affidavit may be ignored because it does not reveal the source of his knowledge and must be considered hearsay. However, Spencer's affidavit recites that Liberty is an Indiana corporation engaged in the manufacture of trailers in that state; that it has no registered agent for service of process, no registered office or indeed any kind of office in New Jersey, and does not do business here; and that all sales are made in Indiana. He further alleges that Buettner, upon whom service was made, is not a trustee, officer, director, manager or general agent, or a servant or employee, of Liberty.

Plaintiffs called Buettner as their witness at the hearing on the motion. He testified that his company's relationship with Liberty for the past three years had been that of dealer

handling Liberty trailers exclusively, buying the trailers from Liberty and then selling them; that Liberty gives a written guarantee with each trailer sold by Bordentown; that Bordentown did not represent Liberty in any other way and received no compensation from it, but made its profit from the trailer purchasers. He said that when the trailers came into this State, the legal title to them was in Liberty, but there is some question as to whether the witness clearly understood the question put to him at this point because, in the very next question, when asked whether Bordentown was authorized to transfer title for Liberty in New Jersey, he answered "From their certificate of origin, yes"; and when next asked, "you transfer title to the trailer on behalf of the Liberty Coach Company," he replied, "Well they sign the certificate of origin."

(Reference at this point to certain sections of the Motor Vehicle Certificate of Ownership Law, N.J.S.A. 39:10-1 et seq. , is helpful in understanding the statutory setting of Buettner's testimony. N.J.S.A. 39:10-2 distinguishes between a "manufacturer's or importer's certificate of origin" and "certificate of ownership." The former means the original document required to be executed and delivered by the manufacturer to his agent or a dealer, or a person purchasing direct from the manufacturer, certifying the origin of the vehicle. The latter means the document issued in conformance with the act, certifying ownership of a motor vehicle, other than the manufacturer's or importer's certificate of origin. As to the possible doubt projected by Buettner's testimony regarding title to the trailers, see N.J.S.A. 39:10-6 which requires every person to have a certificate of ownership for each motor vehicle in his possession in this State, which must be produced upon demand by the Director of Motor Vehicles or a motor vehicle inspector. N.J.S.A. 39:10-8 directs that when a new motor vehicle is delivered in this State by a manufacturer to his agent or a dealer, or a person purchasing direct from the manufacturer, the manufacturer shall execute and deliver to his agent or the dealer, or to such person, a certificate

of origin in the form prescribed by the Director of Motor Vehicles, and no person shall bring into this State any new motor vehicle unless he has such a certificate of origin in his possession. N.J.S.A. 39:10-10 provides that the seller of a motor vehicle must deliver the certificate of ownership to the purchaser when title passes. The licensing of dealers by the Director of Motor Vehicles to engage in the business of buying, selling and dealing in motor vehicles, is covered by N.J.S.A. 39:10-19. And N.J.S.A. 39:10-21 requires that all dealers in new and used motor vehicles in this State shall have a certificate of origin, certificate of ownership or registration certificate for all motor vehicles in their possession, to be produced upon demand by the Director of Motor Vehicles or his agent, or by a motor vehicle inspector.)

In his further testimony Buettner iterated that Bordentown was not employed in any way by Liberty or paid by them as an employee. He testified that at the time of service Bordentown was not discharging any duties or doing anything for Liberty except selling their trailers.

The court denied Liberty's motion without prejudice, with permission to renew it before trial. Liberty subsequently moved for reargument upon its motion and presented the affidavit of the Chief of the Certificate of Ownership Bureau, Division of Motor Vehicles, stating that according to the records of that bureau Liberty had filed a certificate pursuant to N.J.S.A. 39:10-1 et seq. (the Motor Vehicle Certificate of Ownership Law), certifying that Bordentown was its dealer, and that the Director of the Division of Motor Vehicles had issued a license to Bordentown authorizing it to assign a manufacturer's or importer's certificate of origin for Liberty coaches, and to engage in the business of buying, selling or dealing in new and used ...


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