It seems to be conceded in the majority opinion that there was proper evidence to show notice to the respondents of the existence of an outstanding contract of conditional sale and of the holder thereof: in the language of the affidavit, that "the motor vehicle * * * was covered by a conditional sales contract held by Commercial Credit Company, which conditional sales contract was unsatisfied." It is undenied that the parties concerned could have learned everything about this contract by mere inquiry of the holder; but the proposition is that because they had notice merely of its existence and not of its "provisions reserving property in the seller," they were not required to do anything by way of obtaining fuller knowledge. Whether a copy of the "provisions" must be served on them, or whether a statement of their purport would answer as notice, and if so, how specific that statement should be, are questions not considered in the opinion. Neither is it mentioned that the very act whose section 5 is quoted, defines conditional sales contracts (Pamph. L. 1919, p. 461, § 1), as in two classes, and in each class by the very terms of the definition there is a "reservation of property in the seller" which is the test of section 5. In other words, the very fact of a conditional sales contract necessarily connotes a provision reserving property in the seller; and hence, notice of a conditional sales contract isper se notice of such a provision. *Page 100
In Morey v. Schaad, 98 N.J.L. (at p. 801), the point stressed was absence of "notice of the contractual status." And in that case the contracts had been recorded. In Thayer Co. v.First National Bank, Id. 29, 907, the attaching creditor had no actual notice of any conditional sale contract, and the same was not recorded within the statutory ten days. In neither case is the language of the opinion more than mere obiter dictum on the point raised here, nor is it fairly susceptible of the narrow construction placed upon it. In Brown v. Christian, 97 Id.56, the learned writer of the opinion obviously overlooked the definition of a conditional sale contract contained in section 1. Until that definition be changed, notice of an outstanding contract of conditional sale is necessarily notice of a provision reserving property in the seller. Any other rule must create all sorts of confusion as to the adequacy of notice of the "provision." I shall vote to reverse the judgment.
Mr. Justice Bodine and Judges Kays and Hetfield authorize me to say that they concur in the foregoing views.
For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, KALISCH, BLACK, CAMPBELL, LLOYD, CASE, VAN BUSKIRK, McGLENNON, DEAR, JJ. 11.
For reversal — PARKER, BODINE, KAYS, HETFIELD, JJ. 4.