216 A.D. 583 | N.Y. App. Div. | 1926
The action is brought to recover $800.04, the first payment made on a conditional ■ sales contract which was entered into between plaintiff and defendant August 15, 1924, by the terms of which the defendant agreed to sell and plaintiff to buy a Chrysler passenger car. A copy of the contract was given her at the time and she still has it. It is the usual “ partial payment ” contract, now becoming so common, by the terms of which, while payments are being made, the buyer has possession of the car, but full title remains in the seller and conditions are set forth under which he may retake the car. The plaintiff made the first payment upon the contract, the car was retaken and she now has brought this action to recover that first payment. In the complaint there is no charge of false representation. The so-called representations were simply promises, namely, that, so long as she made the stipulated payments, she could keep the car and, if she could not promptly make a payment, her time would be extended; they would deal fairly with her. A cause of action for fraud or deceit is not alleged; nor is there any allegation of mutual mistake, or duress, or that plaintiff did not understand the terms of the contract, or that she did not know its contents. The substance of the charge and the only charge on which recovery is asked is that the defendant induced plaintiff by oral promises to sign the contract and make the first payment with the intent of retaking the car immediately thereafter; that is, without any intent in fact of selling the car, but solely to rob plaintiff of her first payment. On this theory the court has allowed a recovery.
We have here on its face a valid written contract executed by the parties. The plaintiff signed it and she nowhere claims that it is not her contract. It is printed in uniform type, except that the names, dates and amounts are inserted with typewriter. It is throughout plainly legible. It defines her rights in the transaction and is binding upon her whether she read it or not. (Upton v. Tribilcock, 91 U. S. 45, 50.)
The retaking and the attending circumstances are material only as bearing upon the good faith of defendant in making the contract. It is important to note first that this car was not retaken because of default in payments; there was no default. The promises alleged to have been made by defendant to induce plaintiff to sign the contract were not broken. The car was
We conclude that the vendor had reasonable grounds for deeming itself insecure and unsafe and was justified in retaking the car; that act does not indicate that the contract of sale was not made in good faith and nothing after the retaking so indicates. We repeat here that the retaking is assailed solely on the ground that it Was done in violation of the alleged oral promises, thus showing bad faith in making the contract. The evidence does not justify the ninth finding of fact; that the statements alleged to have been made to induce the plaintiff to sign the contract “ were not
No complaint is made of any unfair or wrongful act on the part of the defendant after the retaking, unless it be its refusal to deliver to plaintiff on her demand the Chrysler car, or, failing that, the Jewett car and the fifty dollars. Its offer to her then made that she might have the Chrysler car on paying the purchase price was in accord with the provisions of the Personal Property Law applicable. Plaintiff’s counsel admitted at the trial that defendant, after the retaking, gave all the necessary notices and complied with the statute in reselling the Chrysler car; and he makes no contrary claim now. The controlling provisions of the Personal Property Law are sections 76 to 80-e, inclusive, as added by chapter 642 of the Laws of 1922, known as the Uniform Conditional Sales Act. In these sections are provisions intended to protect in full the interests of the buyer after the retaking. Section 78 provides how he may secure the right absolute to redeem the property whatever the will or intent of the seller. There is in this case no claim that the plaintiff attempted to redeem in accordance with this section. The seller defendant having complied with the Personal Property Law, the buyer plaintiff is not permitted under that act to recover the part payment. (§ 80-e.)
The judgment should be reversed and the complaint dismissed, with costs.
We disapprove of the ninth and eleventh findings of fact and the second sentence of the eighth finding.
All concur.
Judgment reversed on the law and facts and complaint dismissed, with costs. The court disapproves of the ninth and eleventh findings of fact and the second sentence of the eighth finding.