Conford, Freund and Haneman. The opinion of the court was delivered by Conford, J.A.D.
Plaintiff was the holder of defendants' promissory note and a conditional sales contract for the sale to them of a Cadillac automobile. Upon default by defendants plaintiff repossessed the vehicle, sold it for the account of defendants and then brought this action for the resulting deficiency. Defendants counterclaimed for statutory damages under R.S. 46:32-31 (derived from Uniform Conditional Sales Act, Section 25), citing an improper notice of sale. They recovered judgment therefor in the sum of $643.82, being one-fourth of the payments they had made prior to default. Plaintiff had previously withdrawn its complaint. It appeals on the ground that R.S. 46:32-31 was inapplicable for the reason that the sale was not compulsory, but only voluntary on the part of the seller.
The trial court's "Statement of Evidence and Proceedings" sets forth, inter alia:
"* * * It was stipulated between parties that the notice of sale given to the defendants was defective in that it contained the wrong address where the public sale of the motor vehicle was to
be held; that the notice of sale stated that the sale would be held on April 9, 1959, at 11:00 A.M. at Vin Motors at 487 Central Avenue, East Orange, New Jersey; but the sale was held at 487 Main Street, East Orange, New Jersey; that on April 9, 1959, the defendants, Henry and Annie Meyers did proceed to 487 Central Avenue, East Orange, New Jersey, at the time scheduled for the sale; that the defendants paid on account of the note and contract a total of $2,575.30 and that 25 per cent thereof was $643.82; that less than 50 per cent of the purchase price of the motor vehicle was paid by the defendants; that the total time price as set forth in the conditional sales contract was $8,351.80, and $2,575.30 having been paid, left a balance of $5,776.50 at the time of repossession. * * *"
The statute provides that where the buyer does not within 10 days redeem goods conditionally sold, retaken by the seller after default, and the buyer has paid at least 50% of the purchase price at the time of retaking, the seller shall resell them at public auction within 30 days. R.S. 46:32-25. The seller must give the buyer 10 days' written notice of the sale. Ibid. If the buyer has not paid 50% of the purchase price, the seller is not under a duty to resell unless the buyer serves the seller with a notice demanding a resale. R.S. 46:32-26. In that case, "the resale shall take place within thirty days after the service, in the manner, at the place and upon the notice prescribed in said section 46:32-25." Ibid. R.S. 46:32-26 goes on to provide, in language critical to the resolution of the issue before us, "The seller may voluntarily resell the goods for the account of the buyer on compliance with the same requirements." The proceeds of any resale are applied to the expenses of the sale and of taking and storing the goods, and to satisfaction of the contract balance. Any sum remaining is paid to the buyer. R.S. 46:32-27. The buyer is liable to the seller for any deficiency in the amount due resulting from the resale. R.S. 46:32-28.
R.S. 46:32-31, upon the basis of which the counterclaim was successfully prosecuted, reads as follows:
"If the seller fails to comply with the provisions of sections 46:32-24 to 46:32-27, 46:32-29 of this title, after retaking the
goods, the buyer may recover from the seller his actual damages, if any, and in no event less than one-fourth of the sum of all payments which have been made under the contract, with interest."
An ordinary reading of the statutory provisions mentioned and an application thereof to the conceded facts of this case lead directly to the conclusion of liability of plaintiff on the counterclaim reached by Judge Ely in the District Court. The seller did retake the goods and failed to comply with R.S. 46:32-25 in that he gave such erroneous notice of the resale to the buyer as practically amounted to no notice at all. Although this was a voluntary sale by the seller for the account of the buyer, pursuant to the last sentence of R.S. 46:32-26, that section expressly requires that such a resale be conducted in accordance with the notice provisions of Section R.S. 46:32-25. There was thus, literally, a failure by the seller to comply with the provisions of the two sections just mentioned, and consequently liability under R.S. 46:32-31 for damages to the buyer in at least the fixed minimum specified by that section.
Plaintiff seeks to parry the logic of the foregoing synthesis by arguing that the resale held by the seller in this case was not compulsory, the buyer having paid less than 50% of the price and not having demanded the resale by notice, and that the Legislature could not reasonably have intended to allow the buyer an action for damages under R.S. 46:32-31 in such a situation. But we find a wholly plausible basis in the scheme and policy of the statute for sustaining and applying the plain legislative direction that the buyer's action should lie in this context. As was observed in Plainfield Motor Co. v. Salamon , 13 N.J. Misc. 570, 572, 180 A. 428 (D. Ct. 1935), in the drafting of the Uniform Conditional Sales Act, from which our statute is essentially taken, "[t]he welfare of the buyer was given especial attention and every ...