Summary
In Elm Buick Co., Inc. v. Moore, 150 Conn. 631, 192 A.2d 638, the court considered this issue of notice in relation to the defaulting purchaser under a conditional sales contract.
Summary of this case from Goodman v. JonesOpinion
The statutes on retail installment sales financing do not require the holder of a conditional sale contract, who has effected repossession following default by the buyer, to make a resale unless the payments made by the buyer have exceeded a certain percentage of the purchase price. The holder may, however, make a statutory resale regardless of the amount of the buyer's equity. He may recover a deficiency from the buyer only if there has been such a resale. One of the statutory requirements for a resale (42-98 [d]) is that the holder "give the retail buyer not less than ten days' written notice of the time and place of sale either personally or by registered or certified mail directed to the retail buyer at his last-known place of business or residence." The use of the disjunctive in the statute imports that notice by mail shall be an alternative to the giving of notice to the buyer personally wherever he may be found. Actual receipt of notice given by mail is not a prerequisite to a valid sale. To hold otherwise would be to allow the buyer to thwart the sale and thereby to prevent a successful suit for a deficiency. The notice of resale in the present case was correctly addressed and mailed to the buyer at his residence, but it was not received. Subsequent to the resale, the notice was returned to the sender marked "Unclaimed." Held that the buyer could be held liable for the difference between the balance due under the conditional sale contract and the amount received on the resale.
Argued June 6, 1963
Decided June 25, 1963
Action to recover a deficiency alleged to be due on the purchase price of an automobile sold under a retail installment contract, brought to the Circuit Court in the sixth circuit and tried to the court, Casale, J.; judgment for the defendant and appeal by the plaintiff to the Appellate Division of the Circuit Court, which affirmed the judgment, and thence, upon the granting of certification, to this court. Error; judgment directed.
Morris W. Mendlesohn, for the appellant (plaintiff).
Stephen I. Traub, for the appellee (defendant)
Raymond J. Devlin, Jr., with whom, on the brief, was David M. Shea, as amicus curiae.
Anthony I. Wells, as amicus curiae.
On April 22, 1960, the defendant purchased a used 1957 Buick automobile from the plaintiff under a retail installment (conditional sale) contract. See General Statutes 42-83 (e). The plaintiff assigned the contract, with recourse, to the General Motors Acceptance Corporation, hereinafter referred to as G.M.A.C., a sales finance company which financed the purchase of the car. See General Statutes 42-83 (i). The defendant became in default in the installment payments called for by the contract and, on October 25, 1960, G.M.A.C. retook possession of the automobile. At that time, the defendant had paid less than one-half of the time-sale price ( 42-83 [d], [j]) provided for in the contract, and consequently G.M.A.C., when it repossessed the car, was under no duty to resell it. 42-98 (d), (e). However, G.M.A.C. chose to exercise the option, given it under the last sentence of 42-98 (e), to resell the car and therefore was required, under 42-98 (d),
In 1961, by an amendment not applicable to the present case, the statute was changed to increase the buyer's equity requisite for a compulsory resale from 50 percent to 60 percent and to extend the time in which the resale must be held from thirty days to ninety days after the giving of notice. Public Acts 1961, No. 116, 22, 23. The 1961 version now appears as 42-98 (d) and (e) in the revised volume VII (1961) of the General Statutes.