190 A.D. 139 | N.Y. App. Div. | 1919
Lead Opinion
The plaintiff brought this action to recover moneys paid by him, upon the purchase price of an automobile truck which had been sold to him by the defendant. He alleged that the sale was made under a contract for the conditional sale of the truck; that possession thereof was retaken by the defendant prior to the time when the unpaid balance of the purchase price became payable; that the defendant failed to retain possession of the truck for thirty days, but did, during the thirty days after retaking the truck, sell the same at public auction; that for all these reasons he was entitled under section 65 of- the Personal Property Law to a recovery of the sums of money actually paid by him. The defendant alleged in bis answer that he sold the truck to the plaintiff, taking back, as security for the unpaid purchase price, a chattel mortgage rather than an agreement for a conditional sale; that under the provisions of this mortgage he retook possession of the truck because he deemed his security to be imperiled; that he sold the truck at public auction after due
The truck was sold by the defendant to the plaintiff on May 19, 1917, for the sum of $3,000. In part payment of this sum the defendant accepted certain chattels, owned by the plaintiff, at a valuation of $400, leaving a balance unpaid of $2,600. For this balance the plaintiff gave his notes; one note for $125, payable in one month; one note for $125, payable in two months; one note for $125, payable in three months, and one note for $2,225, payable in four months, with the privilege of renewal of the last note for four months, if it were reduced to $2,100, and of a further renewal of such note as reduced for four months, provided it was reduced to the sum of $1,975. At the time of the sale the parties entered into a written contract which provided as follows: “It is still further agreed and understood that the title to said Gramm-Bernstein truck shall rest in Chas. E. Lair until the aforementioned notes and any renewals or part renewals thereof have been fully paid and satisfied.” The contract also provided: “ It is further agreed and understood that the party of the second part shall execute and deliver to the party of the first part a chattel mortgage covering amount of indebtedness on said Gramm-Bernstein two and one-half ton truck.” Simultaneously with the execution of the contract, and in compliance therewith, the plaintiff executed and delivered to the defendant a chattel mortgage upon the truck to secure the unpaid notes. This document, among other things, provided: “In case the said Charles E. Lair, his representatives or assigns, shall at any time deem himself or said property, debt or security, unsafe, it shall be lawful for them to take possession of said property, and to sell the same at public or private sale, previous to the time above mentioned for the payment of said debt, applying the proceeds as aforesaid, after deducting all expenses of the
It is provided in section 65 of the Personal Property Law as follows: “ Whenever articles are sold upon the condition that the title theieto shall remain in the vendor, or in some other person than the vendee, until the payment of the purchase price, or until the occurrence of a future event or contingency, and the same are retaken by the vendor, or his successor in interest, they shall be retained for a period of thirty days from the time of such retaking, and during such period the vendee or his successor in interest, may comply with the terms of such contract, and thereupon receive such property. After the expiration of such period, if such terms are not complied with, the vendor, or his successor in interest, may cause such articles to be sold at public auction. Unless such articles are so sold within thirty days after the expiration of such period, the vendee or his successor in interest may recover of the vendor the amount paid on such articles by such vendee or his successor in interest under the contract for the conditional sale thereof.” In every case of a sale of chattels where the title is reserved, the vendor may retake possession and make a sale only as prescribed by the provisions of this section, and every stipulation to the contrary made by the parties at the time of the sale, or subsequently to the sale, if there be no new consideration to support a new contract, is absolutely void. (Roach v. Curtis, 191 N. Y. 387; Crowe v. Liquid Carbonic Co., 208 id. 396; Adler v. Weis & Fisher Co., 218 id. 295.) In the Crowe case an agreement for a sale of chattels on credit, with reservation of title to the vendor, provided that if the vendor retook possession he need not retain the chattels for thirty days, and sell thereafter within thirty days. It was
Words of more definite nature could not be used to provide for the retention of title by a vendor than the words employed by these parties. It will serve the purpose to quote them again: “ It is still further agreed and understood that the title to said Gramm-Bernstein truck shall rest in Chas. E. Lair until the aforementioned notes and any renewals or part renewals thereof have been fully paid and satisfied.” It is true that in the chattel mortgage the vendee did in form represent himself to be the owner of the truck, but these were the words of a printed form, and set forth a legal conclusion only. They were as idly used as language contained in the same sentence by which the vendee asserted that the truck was then in his possession at Johnstown, N. Y., whereas in point of fact the truck ’was then and for three days thereafter in the possession of the vendor at Gloversville, N. Y. They had no force
The judgment should be affirmed.
All concur, except John M. Kellogg, P. J., dissenting, with a memorandum, in which Lyon, J., concurs.
Dissenting Opinion
If the judgment stands, the plaintiff has had the use of the truck, bought by him from defendant May 19, 1917, from that date to March 28, 1918, and has also recovered all moneys which he paid upon the purchase price, with interest. The result seems so unjust that it becomes doubtful whether the verdict can stand. The contract was for a conditional sale, and it provided that a chattel mortgage should be given on
Tweedie v. Clark (114 App. Div. 296) is not inconsistent with these views. There the instrument was a note, with a conditional sale agreement with a mortgage clause. The note was not paid on the day it became due, but two days thereafter twenty-five dollars was paid to the bank, the owner, and indorsed thereon, and thereafter the plaintiff tendered the balance unpaid, with interest, and demanded the property, which was refused. The court properly construed the agreement as a conditional sale, but it was quite immaterial which it was. Concededly the title to the mortgaged property passed to the mortgagee upon default, but thereafter the owner accepted part payment and indorsed it upon the note. He thus recognized the note as a continuing security for the debt, and when the plaintiff tendered the balance he was entitled to the property. Apparently the defendant had gained possession by trick. It cannot be that the plaintiff can accept a part of the defaulted payment and, when the balance is tendered, refuse it and keep the property as owner. Here, concededly, if there was a chattel mortgage it was properly foreclosed, and the plaintiff cannot recover if the mortgage existed. The chattel mortgage, and the representation and guaranty of title, and the acts of the parties, make it impossible to deny the existence of the mortgage.
These considerations require a reversal. The plaintiff, by a technicality, is seeking to bring about an unjust result from a forced construction of a part of the agreement between the parties. Equity and justice require a more liberal and just interpretation of their entire contract and acts.
A reversal must also result from the charge of the court to the effect that the jury cannot find for the plaintiff unless, at some time before the signing of the chattel mortgage, the title to the truck had passed from the defendant to the plaintiff. This charge was not excepted to, but it compelled a decision for the plaintiff from the fact that there was no pretense that the defendant had any interest in the truck until the
The judgment is against the law and the facts, and for that reason I favor a reversal.
Lyon, J., concurs.
Judgment affirmed, with costs.