Hines v. Strong , 46 How. Pr. 97 ( 1873 )

By the Court, Mullin, P. J.

On the trial of this cause the plaintiff gave evidence tending to prove that he delivered to the defendant a watch in pledge to secure the payment of eighty-two dollars borrowed by the former of the latter.

The defendant gave evidence tending to prove that the plaintiff sold him the watch for eighty-two dollars, under an agreement on his part to sell the watch back to the plaintiff on payment of the sum of eighty-seven dollars. The court instructed the jury that if the plaintiff sold the watch to the defendant, as testified to by the defendant, the plaintiff was not entitled to recover; but if the watch was delivered to the defendant as security for the loan of money the plaintiff was entitled to recover. The jury found for the plaintiff, thus finding the transaction between the parties to be a pledge and not a sale of the watch. Upon this finding the plaintiff was entitled to a judgment on the verdict. It appears that the plaintiff had been examined in proceedings supplementary to execution, and testified that the watch was delivered to the defendant under an agreement to sell it to him, and for a repurchase of it on the expiration of thirty days, on payment of five dollars in addition to the sum paid for the watch by defendant. The plaintiff also testified that the watch was delivered to the defendant by way of pledge, redeemable in thirty days on payment of five dollars in addition to the sum borrowed. He admitted having testified in the supplementary proceedings as stated above and reaffirmed the truth of the statement, but yet insisted that there was no sale to defendant, and excused the discrepancy by saying that at the time of his examination in the supplementary proceedings he was hard pressed, and that he intended to prevent the creditors from getting the watch, but he did not intend to swear to a lie. The jury would have been justified in finding the facts as sworn to in the supplementary proceedings, and if they had their verdict should have been for the defendant. Exit they accepted the other version of the transaction, as they had the right to do, and taking it to be true their verdict was right.

The appellant’s counsel insisted that the plaintiff should have tendered the interest on the whole sum borrowed together with the eighty-seven dollars. I do not think so. Hone of the witnesses testify to an agreement to pay interest in addition to the five dollars bonus to be paid for the use of the money. In the absence of such an agreement the five dollars must be held to be in lieu of interest.

The judgment mxxst be affirmed.