This action is brought on a contract dated February 27, 1940, between the defendants Rose Altman and Harry, her husband, as the party of the first part, and Harry's brother Samuel, and Lilly, his wife, as the party of the second part:
"In the event the party of the first part shall sell the hotel premises owned by it, situated at 206, 208, 210 Eighth Avenue in the City of Asbury Park, New Jersey, the party of the first part does hereby agree to pay the party of the second part a sum of money equal to twenty five percent (25%) of the net profits resulting from the
sale of the aforesaid property. It is expressly understood and agreed between the parties hereto that the within contract shall become null and void and of no force and effect if the party of the first part shall not sell the above described premises prior to or at the time of the decease of the party of the second part, namely: LILLY KAROLINE ALTMAN and SAMUEL ALTMAN, her husband. It is also understood, however, that the consideration of the within agreement shall enure to the benefit of the surviving party of the second part upon the death of one or the other of said parties."
Samuel has passed away; Rose and Harry have sold the hotel, and Lilly sues for one-quarter of the profit. The defendants answer that the agreement was usurious, that it was a bonus exacted for a loan of $15,000 (or less) secured by bond and mortgage bearing even date with the contract, February 27, 1940. The bond and mortgage have been paid in full.
The roots of the controversy go back to the spring of 1938, when Samuel Altman advanced to his brother Harry the sum of $5,000. The check for this amount, drawn to Harry's order, was entrusted by Samuel to his lawyer, Mr. Fixler, who gave a receipt stating that the check was received for the following purposes:
"(1) To purchase real estate in the name of the Dietetic Institute, Inc., property to be selected by Harry and Morris Altman and the selection and purchase of the property to be approved by Leo Fixler.
"(2) In the event of the purchase of any property, the same is to be leased by the Dietetic Institute, Inc. to Harry Altman to be operated for the benefit of Harry and Morris Altman, the division of the profits to be in the following manner: Two thirds to Harry and Rose Altman, one third to Morris Altman.
"(3) The lease shall be void upon its transfer, assignment or sale unless the consent to such transfer, assignment, or sale is first obtained from Mrs. Lilly Karoline Altman.
"(4) The terms of the lease shall provide for the payment of a rental at an annual sum sufficient to pay all taxes, interest on the mortgage and interest on the principal sum invested by the Dietetic Institute, Inc. at the rate of four percent together with all other carrying charges, such as insurance, interest and amortization payments on any possible modernization loan which may be made."
A day or so later, Samuel and Lilly, with defendant's daughter Isabelle, ...