Majority
Judgment affirmed, with costs.—
The Special Term fofind as a fact that the transactions were not loans by the defendant to the plaintiff, but were sales by the plaintiff to the defendant, and that the securities mentioned in the assignments and the three bonds given by plaintiff to clef end-ant were for the purpose of guaranteeing the payment of the bonds and mortgages sold to defendant. The plaintiff filed exceptions to the facts found by the Special Term and to its conclusions of law. The only question involved on this appeal is whether tlie findings are contrary to the weight of evidence. The fact that ic was recited in all of the assignments that the bonds and mortgages wero assigned by the plaintiff to the defendant “ as collateral security’’for the payment of the bond of even elate, is strong evidence that the three transactions wero loans instead of purchases. Again, the fifteen bonds and mortgages assigned July 28, 1892, amount, without interest from their dates to July 28, 1892, to $10,216.57, while the bond given by plaintiff to defendant was for $10,000, and the check given by him to’ plaintiff was for $9,800, making a discount of $416.67, besides accrued interest on the securities. The nine bonds and mortgages assigned by the plaintiff to the defendant September 6, 1892, amount, without interest from their dates to September 8, 1892, to $3,376/67. The bond given by the plaintiff to the defendant on this transaction was for the same amount, and tlie plaintiff’s check was for $8,300, making a discount of $70.67, aside from accrued interest on the securities. The par value of the three shares of stock assigned by the plaintiff to the defendant October 18,1892, was $1,800. The plaintiff received from the defendant $1,590, and gave his bond for $1,623.33, making a discount of $33.33. It will be observed that the first bond is less by $216.67 and the accrued interest than the amount seemed by the first fifteen bonds and mortgages. If the transaction was a sale and guaranty of payment of the securities sold, it is difficult bo see why the purchaser did not execute a guaranty of the payment of the bonds and mortgages, principal and interest. The second transaction is not open to this criticism, though the bond taken is not equal to the principal and interest of the nine mortgages assigned. In respect to the third transaction, it does not appear that the value of the three shares of stock was agreed upon, or oven discussed between the parties, winch is usual when a sale is made. The plaintiff swore positively that the three transactions were loans, and that the three assignments were, as recited in them, intended as collateral security for the payment of the sums loaned. In this he was corroboratedby Charles M. Marvin, who was present at the first and second transactions. This witness testified that the agreement was that the plaintiff should pay the defendant a bonus of two per cent in addition to the legal rate of interest, and that the two transactions were loans. In opposition to this the defendant testified that the transactions were not loans, but were purchases of the securities assigned and that the bonds were taken as guaranties of the payment of the securities assigned. Exactly how the payment of the three shares of stock was or could be guaranteed is not explained. In a letter written bytheplain- . tiff September 12,1893, to the defendant’s attorneys, reference is made to a letter written by them to him September 11,1893. Unfortunately the letter of the eleventh was not put in evidence. In the plaintiff’s letter he says: “ When these transactions were made it was certainly understood that this was only an indirect way to the purchase by Colonel Brown of the numerous little mortgages which I held, and it was done in this way in order that tlie colonel might not be bothered with the collection of small amounts of interest. but might look to me for such payments in one sum.” This statement is a strong corroboration of the testimony of the defendant, and we regard it as of sufficient probative force to sustain the finding of the learned trial judge who had tlie witnesses before him and had an opportunity to observe their manner. The judgment should be affirmed, with costs,
van Brunt, P. J., and Parker, J., concurred.