202 A.D. 273 | N.Y. App. Div. | 1922
The action was commenced in the City Court of Elmira, N. Y., for the recovery of the moneys paid by the plaintiff upon a conditional sale contract for the sale of an automobile to the plaintiff by the defendant. The complaint alleged that the defendant retook the same from the plaintiff’s possession under and by virtue of said conditional sale agreement and that after retaking the same defendant did not, within the thirty days next after the expiration of the period of thirty days from the date of retaking, sell said automobile at public auction or give notice of any such sale to the plaintiff. The defendant’s answer set up a separate defense to the effect that the plaintiff said he was not in a position to continue making the payments on his car as he had agreed to do, whereupon the defendant agreed with the plaintiff that he would take the car and endeavor to sell the same and if the car could be sold for any sum in excess of the balance due, such balance would be turned over by the defendant to the plaintiff; that thereafter and in furtherance of said agreement, plaintiff.voluntarily delivered said car to the defendant and executed and delivered to the defendant
An appeal was taken to the County Court of Chemung county. At the close of plaintiff’s case defendant moved for a nonsuit and a dismissal of the complaint on the ground that the plaintiff had failed to prove facts sufficient to constitute a cause of action. Decision was reserved. The defendant then rested without offering any proof. The motion of the defendant was renewed. The plaintiff moved for a direction of the verdict in favor of the plaintiff. The court then took the case from the jury and has rendered a decision setting forth his findings of fact and conclusions of law and dismissing the complaint on the merits. From the judgment entered upon such decision the plaintiff appeals. ,
The proof, consisting only of the testimony of the plaintiff, shows that on or about July 22, 1920, the plaintiff and the defendant entered into a conditional sale agreement for the sale of an automobile to the plaintiff by the defendant, the title to remain in the vendor until the purchase price was paid. The price of the car was $767. It was a used car. It was represented to him as in good shape, having just been overhauled. The plaintiff was allowed $100 for another automobile which was turned over to the defendant in partial exchange. The plaintiff paid $50 in cash on the delivery of the car and on the twenty-second day of August he paid $51.10 more which was the monthly installment due on that date. On the date of the purchase of the car the plaintiff started for Endicott. It broke down near Owego. He left it there several weeks for repairs and had just gotten it home when it broke down again. Upon again obtaining it from the repair shop he took it back to the defendant’s place of business. The, defendant’s representative told him to take it to the service station; that they would have somebody go out with him and see what was the matter with it. The head mechanic in the service station sent a man out with him to test the car, who reported upon his return that the car needed retiming; that the cylinders needed to be rebored and that there was a defect in the gas supply. The head mechanic told the plaintiff that they could not fix the car right then but if he would leave it there they would look it over and see what was the matter with it. The plaintiff returned to the office of the defendant after trying out the car with the mechanic and .there again saw the defendant’s representative. The plaintiff testified: “ Q. What did you tell him? A. I told him I didn’t want the car in the condition it was in. Q. What else did he tell you,
The plaintiff contends that when he returned the car to the defendant and it was taken and retained and sold by the defendant, it amounted to a retaking of the car by the defendant within the meaning of section 65 of the Personal Property Law; and that the defendant not having followed the provisions of that law in the matter of holding it for a period of thirty days after the retaking or of giving notice to the plaintiff of sale at public auction, he is entitled to recover of the defendant the sum of $201.10, the amount theretofore paid by the plaintiff upon the purchase price, as authorized by the Personal Property Law. The contention of the defendant is that there is no evidence that he retook the car within the meaning of section 65 of the Personal Property Law; that at the time the car was returned he had no right to take it under the conditional sale agreement and in fact did not retake it and that the parties entered into a new and different agreement which superseded the conditional sale agreement. It is apparent from the contention of the plaintiff that he raises no question as to
It has been well settled in construing sections 65-67 of the Personal Property Law
The full effect of the decision in the case of Adler v. Weis & Fisher Co. (supra) seems to be that a mere consent or waiver not expressed in a new contract is inconsistent with public policy. This seems to be decisive of this case, since the facts here do not justify the holding that a new contract was made. No new consideration passed. The defendant did not return the notes given as part of the purchase price and the defendant did not waive any rights the waiver of which might constitute consideration, but rather reaffirmed the right which it had to resell and to hold the plaintiff responsible on his notes for any balance due after reselling _ the car. In this respect the case differs from such authorities as Seeley v. Prentiss Tool & Supply Co. (supra), or Boschen v. Multi
There was no express waiver by the plaintiff but the inference is irresistible that the plaintiff waived his right to be in default, which under the contract would have been accomplished by a failure to make his payment the following day; that he waived the usual retaking after default, - of a physical removal of the car from his possession by the defendant, by permitting the defendant to exercise an act of ownership inconsistent with its possession by the plaintiff, namely, by authorizing a resale of the same by the' defendant without going through the formalities agreed to in the conditional sale agreement.
An act of ownership inconsistent with the possession of the article by the vendee without a physical removal by the vendor is a sufficient retaking within the meaning of the act. (Crowe v. Liquid Carbonic Co., supra.) When the plaintiff said to the defendant that he did not want the car and acquiesced when the defendant said he would take the car and try to sell it and if he sold it for any less than the plaintiff owed on the car the latter would have to make that up, the defendant by taking the car at that time disabled himself from performing on his part so far as any other retaking after default was concerned and the necessary inference is that he acquiesced in the waiver by the plaintiff of any formal retaking after default. The defendant must be deemed to have understood from the attitude and the words of the plaintiff that he did not intend to pay the installment due on the next day and that the defendant could, as he did, treat the contract as broken at that time. The law does not require a vain thing and a strict performance of such a condition precedent as a physical retaking after default may be waived. “ It is a sound principle that he who prevents a thing being done shall not avail himself of the non-performance he has occasioned.” (Fleming v. Gilbert, 3 Johns. 528, 531; Clarke v. Crandall, 27 Barb. 73.)
No new contract was made. There was a default in payment the next day. The defendant then had the right to retake, but it' was already in his possession by his own voluntary act in taking'
The judgment of the County Court should be reversed and judgment directed for the plaintiff in the sum of $201.10, with interest from September 22, 1920, with costs.
All concur.
Judgment reversed and judgment directed for the plaintiff in the sum of $201.10, with interest from September 22, 1920, with costs.
Repealed, except as therein provided, on September 1, 1922, by Laws of 1922, chap. 642 (adding to Pers. Prop. Law, art. 4), known as Uniform Conditional Sales Act. See Pers. Prop. Law, § 76 et seq., as added by Laws of 1922, chap. 642- [Rep.