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.
Geo. G. Barnard, J.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.