Opinion
December 30, 1963.
On defendant's motion for reargument.
Motion denied.
Arthur J. Sullivan (of Morris, James, Hitchens and Williams) for plaintiff.
Samuel R. Russell and Charles K. Kiel (of Herrmann, Bayard, Brill and Russell) for defendant.
Swiderski moved for rearguement of the Court's opinion in the counterclaim; he argues that he is entitled to a larger judgment based upon both actual and minimum statutory damages.
As to actual damages, the only evidence of fair value at the time of repossession is found in the bids made by third persons. The various other figures argued by Swiderski, and they are mny, all flow from the initial transaction between the parties which took place months before repossession. Considering the record as a whole, I conclude that Swiderski has not shown actual damages.
As to the statutory charges, Swiderski argues that under 6 Del. C. § 925, "one-forth of the sum of all payments which have been made under the contract" includes the fair value of the automobile ($1,900) at the time of repossession. I have already held that payments under the contract include the trade-in value of an automobile given at time of purchase, the cash down payment, and all payments made after purchase. It seems to me that this is as far as the Court should go in applying the penalty section of the statute. I conclude that Swiderski is not entitled, for penalty purposes, to have the value of the automibile seized in repossession because of his default considered as if it were a payment made by him under the contract. There is nothing in the statute which requires this, and a reasonable application of the penalty provision precludes it. Swiderski's motion for reargument is denied.