82 N.J. Eq. 614 | N.J. | 1914
The opinion of the court was delivered by
The appellant claims under a contract of conditional sale. The validity of its claim is contested because, as is said, the execution of the contract was not acknowledged or proved as required by the statute. P. P. 1889 p. 1/.21, as amended by P. L. 1895 p. 802. A written order for the goods, subject to appellant’s approval, was signed by the vendee, witnessed by the appellant’s salesman, accepted a few days later by the appellant. The salesman, as subscribing witness, proved the signature of the vendee, and the accepted order was duly recorded. Three objections are made to the validity- of the contract as against
First. If the word “contract” is to be taken in its technical legal sense of a consummated agreement enforceable bjr the law, there was, of course, no contract until the appellant had accepted the order. We think this construction over-nice, impracticable, and not one to carry out the intent of the legislature. Prior to the statute, contracts by virtue of which the possession of goods passed to the vendee while the title remained in the vendor, were valid, although the possession of the goods tended to give the vendee a fictitious credit. To protect others, the statute requires such contracts to be acknowledged or proved and recorded. The statute does not require in so many words that the contract of conditional sale shall be in writing, but this must be implied, since it would be impossible to acknowledge or prove a mere oral contract, and it would be unusual, if not impossible, to record such a contract as our statute directs. A writing seems therefore to be required by implication, but we ought not to carry the requirement of a writing-further than the necessary implication of the statute demands. It does not demand a formal written contract executed by both parties, and we think nothing more is implied than such a written memorandum as was required by the statute of frauds where the goods sold were of the price of $30 and is now required by the Sales act where the value is $500. In a very large proportion, perhaps most, of the contracts of sale in everyday business there is no writing at all. When there is a writing,
If we look further at the statute, the difficulty in the complainant’s nicety of construction becomes still more apparent. The act applies only to cases where the contract for conditional sale is accompanied by an actual delivery. The distinction between the actual delivery, which must accompany the contract, and the actual and continued change of possession which must follow, is marked. If we are to be nice, precise and technical in our construction, we must say that the delivery and the contract must go together and be in effect simultaneous, i. e., the sale must be executed, not an executory contract. If so, the statute is inapplicable to the present case. We think it applicable, because the facts of the case bring it within the reason and spirit of the act, just as we think the proof of execution complied therewith. It is a satisfaction to know that our result accords with that of the supreme court of errors of Connecticut. National Cash Register Co. v. Lesko, 58 Atl. Rep. 967. It would be a vain parade of learning to cite other authorities which bear more or less remotely on the question.
Second. The question whether the proof was or was not by a subscribing witness is purely a question of fact. He testified that he put his signature on the paper at the time the contract was made, on the 8th of September (the date of the order), and not on the 19th (the date of acceptance), that the name of the vendor was not on the paper at the time, that he only witnessed the signature of the vendee, that the line from the word “witness” down toward his name was put there at the same time as his signature. His affidavit is in substantial compliance with the statute. His testimony is not contradicted. We are
Third. Whether the vendee signed and delivered the contract as her voluntary act and deed is also a question of fact. We see no reason why the subscribing witness may not infer the voluntary character of the act from the facts as well as from a formal acknowledgment. To require the precise words of a formal acknowledgment where the statute does not require acknowledgment but proof, savors of archaic law where form was everything. With our more modern notions, the substance of the thing is of more importance, and in this, as in other cases, actions speak louder than' words. Section 22 of the Conveyances act does not require an acknowledgment where the proof is by the subscribing witness; in this respect, the language differs from the language used earlier in the section in dealing with ackno wledgm ents.
The result is that the decree appealed from is reversed and the record remitted for further proceedings in accordance with this opinion.