Northrup v. Buffington , 171 Mass. 468 ( 1898 )

Morton, J.

The only evidence before the court and jury was the auditor’s report, and the ticket referred to in it. The auditor found that each transaction set out in the amended declaration, which was what the plaintiff relied on, was a wager upon the future market price of the particular stock alleged to have been purchased, that neither party expected to account for anything except the difference in the market prices, and that no stock was purchased, sold, or delivered, or was intended to be. The plaintiff contends, in substance, that since it appears from the report that the defendants were doing a commission business for Doran, Wright, and Company, who were stockbrokers in New York and Boston, the wager if any must be deemed, as matter of law, to have been between him and Doran, Wright, and Company, and that the defendants are liable to him for the sums- paid to them as margins and received by them from the sales of the stocks, the sales having resulted in every case in a profit. But the auditor has found that the sums described as margins were paid by the plaintiff to the defendants to protect them in the transactiohs referred to, and were not paid on account of actual purchases of stock or intended by either party to be so applied. In other words, they were in effect the stakes put up by the plaintiff in the various transactions into which he entered with the defendants, and which the auditor has found were wagers upon the future market prices of the stocks to which they related. It is clear that the law will not assist the plaintiff to recover back money paid under such circumstances. Harvey v. Merrill, 150 Mass. 1, 11. It does not appear that, when the transactions were “ closed out ” by the plaintiff’s orders from time to time, the defendants received the proceeds of them. The plaintiff abandoned the count for money had and received. But assuming that the defendants did receive them, the law will not aid the plaintiff to recover the proceeds, any more than it will the money which he paid to the defendants on account of the transactions. It is possible that in England under a somewhat similar statute a different view would be taken. Bridges v. Savage, 15 Q. B. D. 363. But see Cohen v. Kettell, 22 Q. B. D. 680. The auditor has found in effect that all parties were cognizant of the character of the transactions. The fact that the defendants were doing a commission business for Doran, Wright, and Company was immaterial, if the jury found, as they properly could find, that the contracts were wagering contracts, and were so understood and intended by all parties. The instructions which the plaintiff requested were rightly refused. The transactions in question all occurred before the passage of St. 1890, c. 437, and that statute is not, therefore, applicable.

Exceptions overruled.