
    Charles A. Phillips et al., Resp’ts, v. George L. Mason et al., App’lts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed January 18, 1893.)
    
    Stock—Sale—Agreement to repurchase.
    The action was brought to recover back money paid by plaintiffs to defendants under a written agreement whereby defendants agreed that plaintiffs should not be called upon for a second payment on certain shares of stock, and that they would buy back such shares of plaintiffs “ at any time at the price paid and one per cent a month added, provided they wish to sell.” Plaintiffs tendered the stock to defendants and demanded the price paid with the one per cent, which was refused. On the trial defendants set up usury. Plaintiffs put in evidence the agreement, testified to the payment for and delivery of the stock, and the subsequent demand, and rested; defendants gave no testimony, but moved for a nonsuit. Held, that the court properly directed a verdict for plaintiffs.
    Appeal by the defendants from a judgment entered on the verdict of a jury in favor of the plaintiffs, rendered at the Monroe circuit by direction of the court.
    
      A. Becker, for app’lts;
    
      G. C. Werner, for resp’ts.
   Dwight, P. J.

The action was to recover back money paid by the plaintiffs to the defendants under an agreement in writing, of which the following is a copy:

“ Rochester, R Y., Feb'y 27, 1891.

“ We hereby agree that Charles A. and Edward A. Phillips will not be called upon for second and third payments on share Rx —•, in the Empire Ratural Gas Land Association of Buffalo, R. Y. We also further agree to buy back share R). —, Empire R G. L. Ass’n, at any time,' at the price paid for the same, and one per cent a month added, provided, they wish to sell the same.

“ (Signed) Mason, Wiley & Butler.”

The agreement was delivered, with a certificate of stock answering the description therein, by the defendants to the plaintiffs, on the day of its date. The stock was paid for by the plaintiffs with the note of a third person, which was afterwards discounted by the plaintiffs themselves; and at the expiration of nine months the plaintiffs tendered to the defendants a return of the stock certificate and demanded “ the price paid for the same and one per cent a month added.”

It must be said that this transaction strongly suggests a device to cover usury, so that we are not surprised to find the defense of usury interposed in the action brought by the plaintiffs to enforce the agreement above set forth; but we do not find that defense established by the proofs.

On the trial the plaintiffs put in evidence the agreement; testified to the payment for and delivery of the stock certificate, and to the subsequent demand by them upon the defendants for the repayment of the price with the increase of one per cent a month,| and the refusal of such demand, and rested. The defendants gave no testimony, but their counsel moved for a nonsuit and counsel for the plaintiffs moved for the direction of a verdict. There was no request on the part of either to submit any question to the jury. This devolved upon the court the duty of deciding every question of fact as well as of law which might exist in the case. Dillon v. Cockcroft, 90 N. Y., 649.

The only question, whether of law or fact, in the case was whether the agreement on which the action was brought was a contract for the loan and borrowing of money at a usurious rate of interest. It was, undoubtedly, a contract which, at the option of the plaintiffs, would have the effect of a loan of money, insomuch that the money paid for the stock might be recovered by the plaintiffs, and the payment of the money was a sufficient consideration for the agreement to repay it. Eno v. Woodworth, 4 N. Y., 249. And it may be that it was the understanding of the parties, at the time the agreement was made, that this option would be exercised, and that the transaction was, thus, a mere device to cover the exaction and allowance of usury. But there is no evidence to that effect outside of the agreement itself. By the terms of the agreement, to which in the absence of evidence to the contrary full effect must be given, it was a sale of the stock, with the privilege to the plaintiffs to have their money back, with the increase stipulated, at any time when they should desire to resell. It was capable of being construed as in the nature of a guaranty, on the part of the defendants, that the stock would appreciate in value at the rate of at least one per cent a month during the time it should be held by the plaintiffs. Under the agreement the plaintiffs obtained full' title to the stock, and might dispose of it as they saw ñt; so that if the market price increased beyond the rate mentioned they were at liberty to sell it for the better price.

Certainly it cannot be said, as matter of law, that the agreement was, in its inception, a contract for the loan of money, nor that the increase agreed to be paid by the defendants, at the option of the plaintiffs, was interest reserved, or compensation for the loan.

If evidence had been given by the defendants tending to show that the negotiation between the parties was, in the outset, to effect a loan of money, and that the scheme for a sale and resale of stock was suggested as a mode of accomplishing that purpose, there would then, no doubt, have been a question for the jury or the court whether the scheme was not a device to cover usury. In the absence of any evidence to that effect, and on the face of the agreement itself, no case was made for the submission of that question to either tribunal. The direction of a verdict was properly given, and the judgment and order must be affirmed.

Judgment and order appealed from affirmed.

Macomber and Lewis, JJ., concur.  