While of course the provisions of the Soldiers' and Sailors' Civil Relief Act should be given a liberal construction to the end that rights and interests of persons serving in the armed forces may be safeguarded, it is my view that the facts of the transaction in question do not bring this case within the Relief Act.
The original Act of 1940 has no application because this transaction was entered into subsequent to its enactment. Plaintiff bases his right to recovery under the amendment of October 6, 1942, appearing in Section 531 as follows:
"(1) No person who has received, or whose assignor has received, under a contract for the purchase of real or personal property, or of lease or bailment with a view to purchase of such property, a deposit or installment of the purchase price, or a deposit or installment under the contract lease, lease, or bailment, from a person or from the assignor of a person who, after the date of payment of such deposit or installment, has entered military service, shall exercise any right or optionunder such contract to rescind or terminate the contract orresume possession of the property for nonpayment of any installment thereunder due or for any other breach of the terms thereof occurring prior to or during the period of such military service, except by action in a court of competent jurisdiction." (Emphasis mine.)
It is undisputed that the automobile in question was repossessed by the defendant Commercial Credit Corporation on July 25, 1942, some months prior to the effective date of the 1942 amendment of the Relief Act. Such repossession was made *Page 489 also prior to the date on which plaintiff was inducted into the military service. Therefore, it follows that the contract was completely terminated or rescinded before the 1942 amendment was in effect. It is my view that the ultimate sale of the automobile on December 22, 1942, to Seavey constituted no part of the rescission or termination of the contract.
In no event should the defendant Kelley be held liable to the plaintiff for damages alleged to have resulted from the transaction in question. The assignment of the conditional sale contract from defendant Kelley to Commercial Credit Corporation effectively transferred all of the interest of Kelley in the contract and also in the automobile. The assignment contains the following transfer clause: "For value received, the contract (on the reverse side hereof) between purchaser and the undersigned, and all right, title and interest of the undersigned in and to the property therein described, together with all moneys due or to become due and payable thereunder are hereby sold, assigned and transferred by the undersigned to Commercial Credit Corporation, a corporation, its successors and assigns. This assignment is made without recourse in consideration of the following warranties: * * *"
Upon the execution of this assignment the defendant Kelley had no further interest in either the car or the contract, and all dealings under the contract were thereafter had between plaintiff and the Commercial Credit Corporation. It is true that subsequent to the repossession the automobile was sold by Commercial Credit Corporation to the defendant Kelley, but such sale in nowise makes the latter responsible under the Soldiers' and Sailors' Relief Act, any more so than had the sale been made to a stranger. It is true also that the court instructed the jury as to the liability of the defendants if it should find that the defendants acted jointly in the sale of December 22nd. Such instructions were erroneous, however, because entirely unjustified by the evidence. Subsequent to the repossession, a new certificate of title to the automobile in question was issued by the registrar of motor vehicles to Commercial Credit Corporation *Page 490 and that corporation thus became the absolute owner. Certainly by the repossession and such transfer of title the conditional sale contract was fully terminated. Since the termination was effected prior to the effective date of the Relief Act, that Act cannot apply. As is said in the Arkansas case of Ellis v. Smithers,206 Ark. 247, 174 S.W.2d 568, 570, "There is no dispute that, at the time appellees repossessed the refrigerator, appellant was behind three monthly installments. Under the contract, therefore, appellees had the right to repossess the property with or without notice and without legal process. Possession was obtained by appellees peaceably and without fraud. The applicable rule, under the facts here, is stated in 55 C.J., page 1287, sec. 1313, b.-(1), `The conditional seller's right to possession of the goods sold on default of the buyer may be exercised without recourse to the courts by retaking possession provided this can be done peaceably; and this is especially true where the contract expressly so provides. The seller is not deprived of this right merely because he attempts to exercise it by void writ of replevin, or seizure.'"
The Court also later said:
"Finally, appellant argues that he `was protected by the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940. (50 U.S.C.A., Appendix, sec. 501 et seq.), for the postponement of suits, * * * repossesion, payments under installment purchases and conditional sales, etc.' We think it clear, however, that appellant was not entitled to the protection claimed, under the plain terms of the act in question. (Sections 531, 532.)
"The act protects only those who are already obligated when the act was approved and became effective, and did not apply to those who became obligated after its effective date, and then went into the Armed Forces. Appellant became obligated, on the contract here, October 18, 1941, approximately a year after the effective date of the Soldiers' and Sailors' Civil Relief Act of October 17, 1940, supra.
"Nor can the above act, as amended October 6, 1942 (said *Page 491 amendment being entitled `The Soldiers' and Sailors' Civil Relief Act, Amendments of 1942'), afford any relief to appellant for the reason that the refrigerator in question was repossessed by appellees some time between July 30th and August 2, 1942, prior to the approval, and effective date, of the amendment, supra, on October 6, 1942."
I think that the Aber case relied upon by the plaintiff is not applicable to the transaction under consideration. The nature of the instrument involved in that case is not disclosed by the decision, but apparently it was in the nature of a chattel mortgage. That case went no further than to hold that the proposed sale of the automobile in question, notice of which had been given, would constitute a violation of petitioner's rights under the 1942 statute. The court said [180 Misc. 736,40 N.Y.S. 49]:
"Petitioner is, however, entitled to the granting of his motion in so far as it seeks to set aside the notice of sale. The 1942 amendment, which took effect after the seizure and before the date fixed for the proposed sale, provides (Section 10, 50 U.S.C.A. Appendix, sec. 532) that `No sale * * * of property for nonpayment of any sum due under any such obligation (referring to obligations specified in Section 302 (1) as amended in 1942) * * *, whether under a power of sale, under a judgment entered upon warrant of attorney to confess judgment contained therein, orotherwise, shall be valid if made after the date of enactment of the Soldiers' and Sailors' Civil Relief Act Amendments of 1942 * * * and during the period of military service * * * unless upon an order previously granted by the court and a return thereto made and approved by the court.' (Italics the court's.)"
The judgment should be reversed and the cause remanded with direction to dismiss the amended complaint.