Allen v. Forbis

186 F. 276 | 9th Cir. | 1911

GILBERT, Circuit Judge

(after stating the facts as above). [1] The referee allowed the claim of the respondent and thereafter denied the petition of the trustee to reconsider the same, holding that the provision of the statute of Montana (section 8416) subjecting to a penalty "any person conducting any brokerage business, bucket shop or office where grain stocks or securities of any kind are sold on margins” did-not render the respondent’s claim illegal as based upon a contract prohibited by law, and so held upon the consideration that the purpose and aim of the statute in which that provision is found was to inhibit gambling games, and that the' transaction in question was not a gambling transaction,.but was a legitimate contract for the future delivery of merchandise, and that there was no evidence to show that, instead of the delivery pf the article purchased, there was to be a mere payment of the difference between the contract, and the market price. We are inclined to the opinion that the referee was right in so construing the statute.

[2] The statute was directed against gambling.and gambling games, and, being- a penal statute, it is to be strictly construed. A transaction such as is disclosed in this record was not a gambling transaction, but was a contract such as receives the recognition and protection of the courts. In Clews v. Jamieson, 182 U. S. 461, 489, 21 Sup. Ct. 845, 45 L. Ed. 1183, Mr. Justice Peckham said that a sale for future delivery is not on its face void, but is a perfectly legal and valid contract, and that the fact that at the time of making the contract for future delivery the party binding himself to sell has not the goods in his possession, and has no means of obtaining them for delivery other-wise than by purchasing, does not invalidate the contract. Such a transaction is to be distinguished from that which met the condemnation of this court in Joslyn v. Downing, Hopkins & Co., 150 Fed. 317, 80 C. C. A. 205, in which there was no actual bujdng or selling of stocks or commodities, but the transactions were gambling deals or bets on the market price thereof. We think it should be held, therefore, that the clause in the statute, the title of which is “Gambling Games Prohibited,”’ and which denounces a penalty against any person who conducts a. bucket shop or office where grain stocks or securities of any kind are sold on margins, refers only to such transactions on margins as are recognized’ as gambling transactions.

[3] But there is other ground on which the petition for revision should be denied. If it were conceded that the original transaction between the respondent and the bankrupt was forbidden by the statute of Montana, and was therefore unlawful on the ground that every contract which contravenes any legal principle or enactment is declared void, still the illegality of the contract cannot be set up to defeat the claim of the respondent, for the reason that the contract had been executed. It is not denied that the bankrupt had in his possession at or before the adjudication of bankruptcy money which belonged to the respondent, money realized from an unauthorized sale of respondent’s property. To defeat the claim, the trustee relies on the illegality of the contract whereby the property was acquired. But the allowance of the claim does not involve the enforcement of the contract which was made in the broker’s office in Butte. The contract, so far as it could be affected by the statute of Montana, had been completed, and, when the bankrupt disposed of the respondent’s property, a new obligation was created, an obligation to turn over to the respondent property which belonged to him, and in which the bankrupt had no interest. If money has been actually paid to an agent or a partner, the illegality of the transaction by which it was acquired does not affect, the right of the principal or the other partner to recover. In McBlair v. Gibbes, 17 How. 232, 15 L. Ed. 132, it was held that, where an illegal contract has been completed and money has been received by a joint owner as the fruit of the illegal contract, he will not be permitted to retain it, and he cannot protect himself by setting up the illegality of the contract. Of similar import is Brooks v. Martin, 2 Wall. 70, 17 L. Ed. 732, and in Planters’ Bank v. Union Bank, 16 Wall. 483, 498. 21 L. Ed. 473, it was held that, although an illegal contract will not be enforced by the courts, yet when the contract lias been executed, and the illegal result accomplished, money acquired thereby will as between the parties be a legal consideration for an implied promise to pay. Said the court:

“But when the illegal transaction has been consummated, when no comí has been called upon to give aid to it, when the proceeds of the sale have been actually received, and received in that which the law recognizes as having had value, and when they have been carried to the credit of the plaintiffs, the case is different. The court is there not asked to enforce an illegal contract The plaintiffs do not require the aid of any illegal transaction to establish their case. It is enough that the defendants have in hand a thing of value that belongs to them.”

In Willson v. Owen, 30 Mich. 474, Judge Cooley said:

“It is true that the trials of speed for money at the horse fair and the sell ing of pools under the auspices of the association were illegal; but there is no illegality in the promise, express or implied, of the defendant to pay over to the plaintiffs the money received for them, from whatever source derived, or from whatever transaction springing.”

This doctrine has been applied to illegal transactions in stocks on margins similar to that which according to the petitioner’s contention is here presented, and it has been held that, where the illegal transac - tion has been closed and money belonging- to the customer is shown to be in the hands of the broker, the latter may be required to pay the same. Peters v. Grim, 149 Pa. 163, 24 Atl. 192, 34 Am. St. Rep. 599; Overholt v. Burbridge, 28 Utah, 408, 79 Pac. 561; Clarke v. Brown, 77 Ga. 606, 4 Am. St. Rep. 98; McDonald v. Lund, 13 Wash. 412, 43 Pac. 348.

The petition is denied, with costs.