(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.
[New York General Term, January 3, 1870.For these reasons I dissent, and think that the judgment should be reversed.
Judgment affirmed.
Ingraham, Geo, G. Barnard and Brady, Justices.]