Bangs v. Nordheimer , 66 Barb. 627 ( 1873 )

By the Court,

Ingraham, P. J.

By the contract the plaintiff agreed to advance to the defendants $2,000, for which they were to give their note, at six months, with interest, and assign to the plaintiff one-fourth part of their interest in certain mining property. The money was advanced, the note given, and the one-fourth of the interest was transferred.

[First Department, General Term, at New York, November 3, 1873.

It was also agreed that the plaintiff might elect to purchase one-fifth of the defendants’ interest within five months, for $5,000, by giving a written notice of such election, and at the end of one month from such election, he was to surrender the,"note and pay $3,000.

It was further agreed that on payment of the $3,000, and surrendering the note, the parties of the. first part should make a full transfer of such interest.

By this arrangement, it is apparent that the first transaction was an advance of money and giving a note as security therefor. This was to be changed into a purchase, at the election of Bangs, within five months, on a written notice and payment of the balance.

The defendant relies on a conversation between him and the plaintiff in which, he says, the plaintiff said it was a good thing, and he would stick to it. This is denied by the plaintiff, and it became a question of fact to be decided by the court, and as the finding is against the defendants on this point, it is conclusive.

There is also a finding of the court that there was no election to take the share.

With these findings, I see no ground on which the court could hold that the original transaction was changed from a loan to a purchase. This could not be, unless the plaintiff. elected to purchase, either verbally or in writing.

The finding of the court is against both, and the plaintiff is entitled to recover the amount of his advance, and interest.

Judgment affirmed, with costs.

Ingram ham and Brady, Justices.]