The opinion
Shangraw, J.
(dissenting in part). I concur with Chief Justice Holden and desire to add the following comments.
We are only concerned with the 117 conditional sale contracts endorsed and assigned by the plaintiff to the defendant. Any unrelated arrangement which the parties had concerning mortgages, other notes and floor planning, referred to in the majority opinion, is not in issue. Nor are we concerned with transactions had by the parties, .or either of them with the Barre Trust Company. ■ , ■
The majority opinion takes the view, that .the defendant extended to the plaintiff loans on the conditional sale contracts, and that the collection by the defendant of the handling charges constituted usury.
I think it may be said that the defendant was rendering the plaintiff service customarily supplied by finance companies and at least some banks. It has been held that where a finance company buys a conditional sale contract from a dealer it does not create a loan of money, to which usury will attach, where the finance company has no contract whatsoever with the maker of the contract. 91 C.J.S. Usury, section 19(1) page 594. Pierce v. C.I.T. Corporation, 170 Okl. 633 , 41 P.2d 481 .
Admittedly, the various jurisdictions are divided on the point as to whether certain similar transactions constitute a loan or a sale.
In referring to the “handling charge” the majority opinion states that “No question of whether such charge made by Brown to Aja constituted usury was made below.” In this connection attention is called to 45 Am.Jur.2d, Interest and Usury, section 127, which in part reads:
*335 “It is generally held that a finance or other similar charge in excess of the highest lawful rate of interest included in a bona fide conditional sale contract as a part of the ‘time’ or credit price is not usurious.” Citing, Commercial Credit Co. v. Tarwater, 215 Ala. 123 , 110 So. 39 , 48 A.L.R. 1437 ; Zazzaro v. Colonial Acceptance Corp., 117 Conn. 251 , 167 A. 734 .
I do not propose to venture a judgment as to whether the contracts between the makers and the plaintiff were initially usurious. It must be borne.in mind that the makers are not parties to this litigation. Any- concessions or admissions made by the parties to this litigation are not binding upon them.
If, by reason of later litigation initiated by the makers, it should be determined that the “handling charge” initially constituted usury, to permit recovery by the plaintiff in this case, might well subject the defendant to further financial jeopardy or liability in favor of the makers of the conditional sale: contracts under the provisions of 9 V.S.A. section 34 (Repealed 1967) No. 377 (Adj. Sess.) section 2 eff. March 26, 1968.
By permitting the plaintiff to recover the-reserve, fund,-.with interest, which I approve, he will then have réeeived the equivalent of the cash price of the automobile as evidenced by the contracts, also, what he -expected, and bargained for as evidenced by his statement, “* * * there was' nothirig coming to me” according to our original agreement. ■■ '•
The plaintiff and his wife characterized the 117 transactions in question as loans from the. defendant. This in legal effect did not make it so. Defendant claimed that he purchased the negotiable contracts. Whether the transactions were salés or loans depended upon the real intent and understanding of the parties; the words used by the contracting parties were not conclusive in determining the nature of each transaction, and its form will be disregarded. 45 Am.Jur.2d, Interest and Usury, section 129.
It is my understanding that the plaintiff neither reserved the privilege of redeeming or repurchasing the contracts. They were not endorsed to the defendant as collateral security for the payment of a specified debt.
It is my view that the facts and circumstances negate the conclusion that the relationship between the parties was that *336 of borrower and lender of money. On the contrary, it is my judgment that defendant purchased the contracts in question and became the sole owner thereof.