Goldmann, Leonard and Mountain. The opinion of the court was delivered by Mountain, J.A.D.
Plaintiff appeals from an order granting defendant's motion for summary judgment. Both in the court below and on this appeal he appears pro se.
On May 20, 1968 plaintiff entered into an installment sales contract with Don DeMar Motors, Inc. to purchase a new 1968 Plymouth Fury, 4 door sedan. The cash price of the vehicle -- the amount the seller would have charged had he received an immediate payment for the full purchase price -- was $3,289.50. Plaintiff's trade-in allowance on his old car together with a cash down payment totaled $831.50, leaving a balance of $2,498. To this were added the following:
Credit Life insurance 38.17
Time price differential 411.15
Thus the time balance -- the amount still to be paid in installments over the life of the contract -- was $3,154.32.
According to defendant, it thereafter received a total of $1,218.68 in monthly installments. Plaintiff believes that
more than this was paid. In September 1969 -- the exact date is in dispute -- defendant repossessed the vehicle, basing its right to do so upon a claim that plaintiff was in default. Sometime thereafter plaintiff initiated this action. The complaint is inartistically drawn but may be said to set forth a claim that the repossession was improper since there was no default. Relief is sought in the form of damages, or in the alternative by specific restoration of the parties to their respective positions before the repossession -- the car to be returned to plaintiff and his contractual obligation to make monthly payments to continue as before. He also demands that personal property, in the car when it was taken by defendant, be returned to him. Defendant's answer asserted that a default existed at the time of repossession and that all personal property found in the car had been returned.
Thereafter defendant moved for summary judgment, the motion being accompanied by a supporting affidavit. Plaintiff filed no responsive affidavit but appeared in court in opposition to the motion. No point seems to have been made of his failure to file an affidavit nor did the judge direct that this be done. Rather, plaintiff was allowed to present his case orally but not under oath. While we do not approve this practice nor believe it should be encouraged, it was perhaps excusable under the circumstances here present. In any event we choose to overlook this failure on the part of the plaintiff and, like the trial court, will treat plaintiff's oral statements as if properly made under oath. In so doing, we reach the conclusion that defendant's motion should have been denied. Plaintiff's statement of alleged facts countered defendant's claims in at least two important respects. He first insisted that upon the day the car was repossessed he was not in default, claiming he had made ...