Woodworth v. Morris

(dissenting.) The plaintiff’s statement is, that he borrowed $250 on the stock deposited with the defendant, which he was to pay in ten or fifteen days, with the additional sum of $15 for the use of the money. The defendant’s version of the transaction is, that he refused to make a loan, but agreed to and did buy the stock from the plaintiff, saying to him, at the time, “I have got enough of this stuff, and if, at the end of ten days, you come here you can have the stock back, at the same price that you sell it.” The plaintiff denied that there was “any agreement at all of buying the stock;” and although it may he said that there was testimony in the case seriously affecting the truth of such denial, there was a conflict of evidence, nevertheless, upon the question whether the transaction between the parties was as represented by the plaintiff. It was error to assume, therefore, that it constituted a conditional sale. If the deposit was made with the defendant, as stated by the plaintiff, it was a pledge, only, and not a mortgage; (Lewis v. Graham, 4 Abb. Pr. Rep. 106; Wilson v. Little et al., 2 Comst. 443;) and the offer of the plaintiff to pay the amount of the loan, on the morning after it became due, was sufficient to justify this action, unless the defendant had, at that time, lawfully sold the stock, which it was for him to show. Whether the plaintiff did make the offer, was a disputed fact, about which the defendant and he differed. He said that he made the offer, and that the defendant answered that he *105had “confiscated” the stock; while the defendant stated that no such offer was made. These questions should have been submitted to the jury. If not both, certainly the question relating to the character of the transaction.

For these reasons I dissent, and think that the judgment should be reversed.

Judgment affirmed.

Ingraham, Geo, G. Barnard and Brady, Justices.]

The plaintiff’s statement of the transaction with the defendant is, that he sent his broker word that he wanted the money, and he got it for him, and he made the agreement with Morris; that the transaction was all completed by the broker, and all he had to do was to give the stock. The broker, Crassous, testified that he was requested by the plaintiff to get a loan; that Morris refused to make a loan; that he went and told Wood-worth the only way he could get the money was to sell the stock; that Woodworth told him he would sell the stock; that they went round to Morris and made the sale. The bill of sale was delivered then, and the money was paid.

It was then agreed if he brought the money back in ten days Morris would return the stock. Morris testified to the same state of facts. Throughout all the evidence, it is apparent that the defendant refused to loan the money, and only agreed on a sale. This is corroborated by 'the bill of sale given by the plaintiff at the time. It is appa*103rent that the plaintiff was not present at the first negotiation, and the evidence is so preponderating against him, that if the case had been submitted to the jury, .and they had found in the plaintiff’s favor, the verdict would have been set aside as against the evidence.

There is another'ground on which the judgment below should be affirmed. If it was a pledge, the defendant was entitled to interest on the loan. Even the plaintiff does not 'claim, in his evidence, that he was to have the loan without interest; and all the evidence to sustain the position that the plaintiff could have his stock back on payment of the principal, was the defendant’s statement in connection with the sale, to give the stock back within ten days.

The tender, also, was not made on the day fixed, viz., ten days after» the receipt of the money. If the defendant’s, statement, that he agreed to give back the stock if the money was tendered within ten days, is to be taken, as relieving from interest for the ten days, no tender was made within that time; and on the next day, if a tender could be made, there was due one day’s interest, which was not tendered. To entitle a pledgor to a return of the pledge, he must see to it that his tender caver’s both principal and interest, before he can claim a return of the pledge.

Under any view that can be taken of the evidence in this case, there was no question to go to the jury, and the question" on which the plaintiff asked to go to the jury was an immaterial one. ■

The complaint was properly dismissed.

Judgment should be rendered for the defendant, with costs.

The transaction was either a conditional sale or a mortgage. On the defendant’s testimony, it was a conditional sale; on the plaintiff’s, a mortgage. *104(Brown v. Bement, 8 John. 96.) In neither case can trover be maintained for a failure to return the property upon a tender being made after the day limited for payment.

With reference to the point made by the appellant respecting usury, it is sufficient to say that the complaint is not in proper form to permit a recovery on that ground. (Schroeppell v. Corning, 2 Comst. 132.)

The judgment should be affirmed, with costs.