This is an action of contract, brought at common law and under the E. L. c. 99, § 4, to recover a sum of money paid to the defendant by one Thayer, the plaintiff’s testator, on account of contracts to buy or sell securities upon margin. A verdict was directed for the plaintiff for the amount found due by the auditor, with a correction of a small clerical error agreed upon by the parties. The plaintiff excepted, because the judge declined to rule that the verdict should include the whole amount paid by Thayer on account of such contracts, without deduction for what he received from the defendant on account of other similar contracts. The defendant excepted to the ordering of the verdict, and to the refusal of the judge to give
We will consider first the defendant’s exceptions. There were several counts in the plaintiff’s declaration, some founded on the common law and others on the statute. The defendant also filed a declaration in set-off. In the present aspect of the case, no question of pleading is material, and none has been argued; for if the plaintiff was entitled to recover, as matter of law, upon any count, the verdict was rightly ordered. Although several witnesses were called, and exceptions were taken by the defendant to the exclusion of testimony, no evidence was introduced which tended in any way to contradict or modify the findings of the auditor.
It appears by the agreement of the parties that there were eighteen hundred and sixty transactions between Thayer and the defendant, of the kind described in the auditor’s report; that on eleven hundred and seven of these transactions Thayer paid to the defendant $318,470, and received fiom the defendant $429,134.46, thus obtaining profits or winnings to the amount of $110,664.46; that on five hundred and twelve of the transactions Thayer paid to the defendant $250,187.50, and received from the defendant $149,768.98, thus suffering losses to the amount of $100,418.52; that on eighty-eight of these transactions Thayer paid to the defendant $39,210, and received nothing from the defendant; and that on one hundred and fifty-three of the transactions Thayer paid to the defendant $43,426.25 and received the same sum from the defendant on closing out the transactions. The result was thus a net loss to Thayer of $28,964.02.
These transactions were conducted under contracts which were of only two kinds, one for agreements to buy and the other for agreements to sell. The following is a copy of one of them: “ Boston, Mass. April 16,1903. On three days’ notice the Metropolitan Stock Exchange has promised to deliver to Mr. Thayer three hundred full shares St. Paul at 1611 and the holder of this contract agrees to receive the same; or upon surrender by mutual consent of this contract said corporation agrees to pay the holder of it a sum equal to the then advance in the market price of said commodity or stock. All deposits shall become the absolute property of said corporation to the amount of the decline in the
These findings bring the case within the R. L. c. 99, § 4, which gives a right to recover for payments made upon such contracts. The first part of the findings as to the intention of Thayer follows, perhaps inadvertently, the terms of the St. 1890, c. 437, § 2, before the enactment of the St. 1901, c. 459, but the latter part of the finding, as to what was intended and mutually understood by both parties, plainly comes within the provisions of the amendment of 1901, embodied in the R. L. c. 99, § 4. -It shows an affirmative intention on the part of Thayer that there should be no purchase or sale, and on the part of the defendant reasonable cause to believe that Thayer had this intention. It is therefore unnecessary to consider the counts of the declaration founded on the common law.
There is nothing in any part of the auditor’s report, or in the other evidence, which tends to diminish the force of these findings. The affirmative intention of Thayer, with reasonable cause
We come now to the objections raised by the defendant. Its first contention is that an action of this kind does not survive to an administrator. Although the Legislature, in enacting the statute, doubtless had a deterrent purpose in reference to such contracts, it has been decided that the act is remedial and not penal. Wall v. Metropolitan Stock Exchange, 168 Mass. 282. Its principal direct effect is to relieve one who wants to get back a payment made without a lawful consideration, upon an executed gambling contract, from the defence that he is barred by being in pari delicto. It also makes unenforceable a contract which in-eludes almost, but not quite, all the objectionable features of a gambling contract at common law. It has been decided that a proper remedy, under the statute, is an action of contract for money had and received. Crandell v. White, 164 Mass. 54. This is upon the theory that the gist of the action is a right to recover money paid without a valid consideration. We are of opinion that the action survives to a legal representative of the estate of the payor.
The contention" that the plaintiff’s right of action on account of transactions before June 5,1901, was taken away by the passage of St. 1901, c. 459 (R. L. c. 99, §§ 4—7j) is answered by the decision in Wilson v. Head, 184 Mass. 515, and the cases that follow it. See Loughlin v. Parkinson, 184 Mass. 565.
So too the contention that the statute is unconstitutional has been passed upon adversely by a decision of this court. Crandell v. White, 164 Mass. 54. See Corey v. Griffin, 181 Mass. 229, 233.
The defendant argues that the releases signed by Thayer are a bar to the plaintiff’s recovery. If no rights of creditors were involved, the releases would be an effectual defence to the action. Wall v. Metropolitan Stock Exchange, 168 Mass. 282. Clark v.
The evidence offered by the defendant, as to the defendant’s course of dealing with customers other than the plaintiff’s intestate, was rightly excluded. Under the statute on which the verdict rests, the intention of Thayer was the first fact to be established. That intention was to be ascertained from what he said and did in connection with what was communicated to him. What his dealings with the defendant were, from first to last, was put in evidence. The defendant’s dealings with others, of the particulars of which, so far as appears, Thayer had no knowledge, have no tendency to show Thayer’s purposes in these transactions.
So too, the testimony of the defendant’s manager, as to what his actual undisclosed intention was as to the delivery of the stocks, was immaterial. The primary question was what was Thayer’s intention, and as to the defendant, the question was what it had reasonable cause to believe in regard to Thayer’s intention. See Marks v. Metropolitan Stock Exchange, 181 Mass. 251, 254.
The plaintiff’s bill of exceptions is founded upon his contention that the defendant cannot recover, under the statute, for payments made to the plaintiff under these contracts, on the ground that it was not a party contracting “ to buy or sell ” upon credit or upon margin, as Thayer was. In Lyons v. Coe, 177 Mass. 382, it was held that a person, who was employed by another to buy or sell for his account, has no remedy, under this statute, to recover for payments made under such a contract, although the person who employs him has such a remedy. As to the
Upon both bills there must be the same entry,
jExceptions overruled.