
    N. G. STARKWEATHER vs. M. H. PRINCE.
    At Law.
    No. 8936.
    I. Where a span of horses and other chattels are conveyed, upon an agreement that the owner may repurchase the same within six months, upon paying the amount advanced, with two and a half per cent, per month for the use thereof: Held, that the coutract is usurious upon its face, and the agreement valid only for the actual sum advanced.
    II. Where it was also agreed that the owner should have the reasonable use of the property, and pay the expenses of keeping the same, and he tendered the sum advanced within six months, but the pledgee had disposed of the property to a third party: Held, that the owner may maintain trover for their conversion. Held, also, that if the latter had been deprived of the reasonable use of the property, the expenses of keeping it could not be recovered from him.
    STATEMENT OF THE CASE.
    This was an action in trover for a pair of horses, a buggy, harness, &c., tried before the chief-justice at the last January term of the circuit court.
    The plaintiff introduced in evidence the following written paper:
    “Washington, March 20,1871.
    “ Know all men by these presents that I, M. H. Prince, of the city of Washington, D. C., have this day bought of E. G. Starkweather one reversible buggy, one set double harness, shaft and pole, one set single harness, two gents’ and one lady’s saddle, and bridle, carriage and stable blankets, two whips, mat, and two lap-robes, one horse named Peacock and one mare named Rhoda, for four hundred dollars, and I agree to hold the above-named property for the space of six months from the above date for E. G. Starkweather, giving him the right at any time within the above-stated six months to repurchase the above-named property, be paying me at the rate of two and one-half per cent, per month for the use of said four hundred dollars, and also granting him the reasonable use of above-named property; and during the term of the six months specified, he, the above-named E. G. Starkweather, is to pay the livery and shoeing of horses, or, if 1 pay the same, the amount so paid to be repaid to me in addition to the four hundred dollars within mentioned; and I also agree, if any damage should occur to the within-named property through any carelessness on my part, to have the same repaired at my cost and expense, or if any damage should occur to 'said property while in my use to pay expense of such damage as may occur; and in the event of said N. G. Stark-weather not being able to repurchase the within-mentioned property in the time herein mentioned then the said property to be sold to the best advantage, and any amount over and in excess of the amount due me to be paid over to said N. G. Starkweather or order; and it is further agreed that none other than myself shall drive the within-named horses, Peacock and Ehoda.
    “M. H. PEIKCE.
    “Witness: Jacob Wolee.”
    And further offered evidence tending to prove that said defendant was placed in possession of said property under said agreement, and shortly thereafter refused to grant him the reasonable use of said property, and that he had not abused his right to have such reasonable use of said team. That just within the said period of six months he tendered to the defendant the sum of four hundred dollars and demanded the return of said property, which defendant refused to make.
    He further offered evidence tending to prove that the value of the property mentioned in said paper-writing was from $1,500 to $2,000, and that defendant used the team badly, permitted other persons than himself to drive them, and impaired their value.
    The defendant offered evidence tending to prove that at the time of the execution of said paper-writing he was a licensed pawnbroker in the city of Washington, D. O.; that he prohibited said plaintiff from using said team, because he was abusing his right to do so to such an extent as to diminish his security, that said plaintiff never tendered said sum of $400; that he had paid several hundred dollars for the cost of keeping said team, and that after the expiration of said six months he sold said property to the best advantage he could, and did not realize enough to reimburse-him said $400 and the expenses of keeping said team; and thereupon rested.
    The plaintiff then prayed the court to instruct the jury as follows:
    
      "1. If the jury shall find from the evidence that the plaintiff did not unreasonably use the property, and that the defendant took exclusive possession of the same and deprived the plaintiff of the use thereof, the defendant should not be entitled to recover anything for the keeping of said horses.
    
      “2. If the jury find from the-evidence, under the instruction of the court as to the construction or legal effect of the contract between the parties, whereby the defendant claims to have acquired an interest in the property in question, that the plaintiff tendered the full amount the defendant was entitled to demand from him under the circumstances in this case as developed by the evidence, then the plaint, iff is entitled to recover.”
    Which prayers the court granted, and to the granting of each of which the defendant excepted.
    The defendant thereupon prayed the court to instruct the jury as follows :
    “1. If the jury believe from the evidence that Stark-weather was abusing his right to have the reasonable use of said team, then Prince was justified in preventing him from using said team; and the plaintiff is not entitled to recover, notwithstanding the jury may believe from the evidence that Starkweather tendered him the sum of $400: [provided the jury shall further find the misuse endangered the security of the loan.]
    
      “2. If the jury believe from the evidence that Stark-weather was not abusing his right to have the reasonable use of said team, the plaintiff is not entitled to recover in this action, although the jury may believe that he made a tender to the defendant of $400 within said six months, [unless they shall further find under the circumstances that the sum , of $400 did not cover the amount due the defendant.]
    “3. In order to entitle the plaintiff to recover in this action, he should, within said six months, have tendered the plaintiff the amount due him, including expenses; not having done so, he is not entitled to recover, [without the jury shall further find that the defendant, in contravention of the agreement, took exclusive possession of the property, depriving the plaintiff of the use of it; in that case the act of the defendant exonerated the plaintiff from paying the expenses of the keep of the horses.”]
    Which the court refused to grant, except with the qualifications thereto appearing in brackets; to which refusal to grant each of said prayers as prayed, the defendant then and there excepted, and excepted to the qualification of each of the same, and also to each of said prayers as granted with the qualification.
    
      L. G. Hine for the plaintiff.
    
      W. F. Mattingly contra.
   Cartter, C. J.,

delivered the opinion of the court, to the effect following:

We think this action was properly brought in trover. The contract in effect is that the property was to be returned to the plaintiff upon his paying the $400 with interest and expenses of livery within a period of six months. If a tender was made within that time of all that was due the defendant, and he refused to redeliver the property, or had disposed of it by sale to other parties, this undoubtedly amounted to a conversion. By the latter act he was unable to comply with his express agreement to return it. (Sargeant vs. Blunt, 16 John., 73.)

Under our present law the contract on its face was usurious, and valid only for the amount lent without any interest. (16 Stat. at Large, p. 91.) The jury have found that the whole amount due defendant was tendered within the six months, which entitled the plaintiff to the possession of the property, and to maintain an action for its recovery.

The court instructed the jury that if they should find from the evidence that the plaintiff had not unreasonably used the property and had been deprived of its use, the defendant would not be entitled to recover anything for keeping the horses. We can see no reasonable objection to this instruction. The contract provided that the plaintiff should pay the livery and shoeing expenses, and that he should have the reasonable use of the property during the term of the six months. It is plain that the use of the horses which the plaintiff was to enjoy is to be regarded as a compensation for his undertaking to pay the expenses of keeping them, and the direction to the jury only gave effect to this Mr construction of the agreement.

We are of opinion that the judgment must be affirmed.  