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Toker v. Perl

Decided: November 13, 1968.

ROBERT TOKER AND MILDRED TOKER, DOING BUSINESS AS BUDGET ASSOCIATES OF NEW JERSEY, PLAINTIFFS,
v.
JEFFREY OTTO PERL, ALSO KNOWN AS JEFFERSON OTTO PERL, AND DIANE PERL, DEFENDANTS



Triarsi, J.d.c., (temporarily assigned).

Triarsi

This is a suit for a deficiency under an installment sales contract made between defendants and People's Foods of New Jersey, Inc. assignor of the plaintiffs.

On September 5, 1966 an agent of People's Foods, Inc. arrived at defendants' home for a prearranged appointment. The ensuing interview, which lasted about three hours, centered around food plans that could be arranged by People's Foods. For the first 2 1/2 hours no mention was made of a freezer. However, sometime within the last half-hour of the interview, when it became apparent that the plan called for the purchase of 18 weeks of food at a time, defendants mentioned that they had no facilities to store such a large quantity of food. The agent replied that a freezer was included in the food plan.

Following the explanation of the food plan, and when Mrs. Perl was out of the room, the agent presented three forms to defendant husband and asked him to sign them. He was informed that the documents were the agreed-upon plan for 18 weeks of food.

The forms were placed before defendant, one on top of the other, leaving visible only the signature line on the lower two forms. The top page was the food plan contract. When Mrs. Perl returned she also signed the three forms which were presented to her in the same manner as they had been presented to her husband.

The agent left the house around midnight, at which time defendants retired for the evening. The next morning defendants examined the papers they had signed and discovered that in addition to the food plan they had signed a financing application and an installment contract for a freezer.

Defendants immediately attempted to cancel the freezer contract. However, all communications with People's Foods proved fruitless. Thereafter both the freezer and a quantity of food were delivered to defendants' residence.

In addition to the unwanted freezer, defendants found that the quality and quantity of food delivered was not in

conformity with the contract nor the representations made to them. After People's Foods failed to rectify this, defendants ceased making payments on the freezer.

All of these undeniable facts were established from the wholly credible evidence offered by defendants. Plaintiffs did not offer any evidence in contravention.

Sometime after the signing of the contract plaintiffs, who trade under the name of Budget Associates of New Jersey, were assigned the installment contract. They, in turn, assigned the contract to the Community National Bank and Trust Company of Richmond, with recourse.

At trial defendants presented an expert witness who testified that the freezer delivered by People's Foods had a maximum value of $300. The installment contract signed by defendants provided for a purchase price of $799.95, sales tax of $24, group creditor life insurance of $16.93 and a credit service charge or time-price differential of $252.08. The ...


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