[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 391 In my opinion, this is not a case of pledge. The clothing was never the property of Mrs. Earl. She owned a house and the defendant owned clothing. He was to have the house free of taxes for a certain quantity of clothing. When the time came for the transfer, she was unable to pay these taxes, and thereupon the written agreement, proved in the case, was made between them. By the terms *Page 392 of this agreement, Hays was to retain part of the clothing, but was to deliver it to her, if, within a month, she paid the taxes; if she did not, he was at liberty to pay them himself and keep the clothing. Hays made her no loan; she gave him no security, for she did not own the clothing. It is true, he held it as security, as a vendor holds goods sold as security for the unpaid price. There was no relation of borrower and lender, or of pledgor and pledgee. The real bargain was so much clothing for a house free from taxes, and so much less clothing if the taxes remained unpaid after thirty days. Just as a bargain to sell for so much, to be paid in cash, or so much more in case credit be given, does not make usury, so this bargain does not create the relation of pledgor and pledgee. Mrs. Earl's interest in the clothing not delivered was conditional on her fulfillment of the terms of the agreement. If she failed to pay and he paid the taxes, that was the end of it.
The court at General Term was right, and their order should be affirmed, with judgment absolute for the defendant.
All concur; LOTT, Ch. C., not sitting.
Order affirmed and judgment accordingly.