Goldmann, Sullivan and Labrecque. The opinion of the court was delivered by Goldmann, S.j.a.d.
Plaintiff appeals from a county district court judgment entered in defendants' favor on its complaint as well as on their counterclaim. The case was heard without a jury and was decided upon stipulation of admitted facts. Under that stipulation defendants' demand for interrogatories and plaintiff's answers thereto were submitted in evidence by consent of the parties.
On November 17, 1958 defendants entered into a conditional sales contract with Gorman P. Fischer, Inc. for the sale of an automobile. The contract was assigned to plaintiff the same day and filed in accordance with R.S. 46:32-13. The
New Jersey Motor Vehicle Department thereupon issued a certificate of ownership to plaintiff, with its lien recorded thereon. A copy of the certificate was delivered to defendants. See N.J.S.A. 39:10-11(B).
Plaintiff admits it received $2,062 on account of the total purchase price (including financing) of $2,534, leaving a balance of $472. Defendants' last payment to plaintiff was made on August 3, 1961, and they admit they were in default under the conditional sales agreement as of that date. In September 1961 plaintiff's representative removed the automobile from the premises of Nicholas Motors, where it had been left by defendants, and took it to the bank's parking lot where it has since remained in its possession and control. Plaintiff made numerous demands upon defendants for payment of the balance due, and it admits it would not release the car to them unless the balance were paid.
In June 1961 plaintiff delivered the original certificate of ownership to defendant Fred Tuzeneau at his request, as he desired to transfer title to his wife. He never made such transfer, nor did he ever return the certificate to plaintiff. He claims that the certificate was in the glove compartment of the car when it was left at Nicholas Motors.
Eventually the bank brought an action in the county district court to recover the $472 remaining due, plus an attorney's fee of $70.80 as provided for in the conditional sales agreement. By a second count it demanded judgment of $200, representing a reasonable charge for storage at the rate of 50 cents a day. Defendants answered and, among other defenses, alleged that plaintiff had not complied with the statutes governing the retaking of the automobile and the resale thereof. By way of counterclaim they alleged that plaintiff had failed to comply with that section of the Uniform Conditional Sales Act mandating a resale where there has been repossession of the article sold, and they were therefore entitled to recover their actual damages of not less than one-fourth of the sum of all payments made under the conditional sales agreement, with interest, as provided in R.S. 46:32-1 et seq. Accordingly, they
demanded judgment of $513 with interest from the time of repossession. The county district court judge awarded them that amount.
On this appeal plaintiff has abandoned the issue it raised in the trial court -- that it did not actually repossess the automobile but accepted surrender of it by the buyers. There can be no question, in light of the stipulation of admitted facts, that plaintiff repossessed the car by its own unilateral action. It was not obliged to do so, but once having elected to repossess, it was compelled to proceed in accordance with the provisions of the Uniform Conditional Sales Act, R.S. 46:32-25.
Plaintiff contends here, as it did below, that it was not required to comply with R.S. 46:32-25 because it did not have the original certificate of ownership and so could not legally proceed with a public sale. It places the blame on defendants for their failure to return the certificate to it.
Since both the conditional sale and the repossession of the car pre-date the adoption of the Uniform Commercial Code, N.J.S. 12A:1-101 et seq., effective January 1, 1963, this matter must be resolved under the Uniform Conditional Sales Act. R.S. ...