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First County National Bank and Trust Co. v. Canna

Decided: May 30, 1973.

FIRST COUNTY NATIONAL BANK AND TRUST COMPANY, NOW BY MERGER NATIONAL BANK AND TRUST COMPANY OF GLOUCESTER COUNTY, PLAINTIFF-APPELLANT,
v.
ANTHONY L. CANNA, ANNE B. CANNA AND MICHAEL DIODATO, DEFENDANTS-RESPONDENTS



Lora, Allcorn and Handler.

Per Curiam

In 1969 plaintiff brought suit against defendant Michael Diodato, and on November 18, 1970 judgment was entered in favor of plaintiff and against Diodato for $2,402.65.

Between the time of commencement of said action and the entry of judgment therein defendant Anthony L. Canna claims to have loaned to Diodato (his brother-in-law) the sum of $2,200 to enable the latter to purchase a used Cadillac automobile. The loan was all in cash -- defendant Anna B. Canna, the wife of Anthony and the sister of Diodato, testified that she "gave the money to my husband, he gave it to my brother."

According to the testimony of Anthony Canna, the entire transaction was consummated on February 28, 1970; the parties had no legal advice and simply "worked [the] . . . papers up" themselves. Diodato executed a handwritten promissory note, dated February 28, 1970, in the following form:

I, Michael Diodato, promise to pay $2,200.00 which was loaned to me for the purchase of a 1968 Cadillac, Serial #A-B8135760 Z, to be paid to Anthony L. Canna within 3 years time of above date.

There was no provision for the payment of interest. The note bore the signature of Diodato, as well as that of a notary public. There was no jurat or other attestation by the notary, although it did bear his seal and the notation "2/28/70" alongside his signature. The notary was present and signed the note because Canna "felt this was the best way to do it."

Canna testified further that, following the execution of the note, both he and Diodato proceeded to the "division of motor vehicles" where a new title certificate to the Cadillac was issued in the name of Diodato as owner, and designating Anthony L. Canna as "secured party". No instruments or papers other than the note and the title certificate appear to have been drawn or signed by any of the parties with regard to the transaction of February 28, 1970.

An additional loan of "around $900" was claimed by Canna to have been made by him to Diodato in April, 1970. Another handwritten promissory note signed by Diodato, dated April 15, 1970, and bearing the signature of the same notary public, stated:

I, Michael Diodato promise to pay an additional $900.00, for personal expense, which will be added to the $2,200.00 original loan on a 1968 Cadillac, Serial #A-B8135760 Z, making the total amount of $3,100.00 to be paid within 3 years time of the original note to Anthony L. Canna.

Again the note made no provision for interest.

Following the entry of its judgment on November 18, 1970 plaintiff levied execution upon Diodato's Cadillac. As a result plaintiff became aware of the fact that Canna was designated as "secured party" on the certificate of ownership of the vehicle, and was asserting a lien against it as security for ...


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