159 Mass. 344 | Mass. | 1893
We are not certain that we correctly understand the grounds of defence set up in the amended answer, but it does not appear that the direction of the presiding justice to return a verdict for the plaintiff rested on the ground of variance between the answer and the evidence. Kennedy v. Owen, 131 Mass. 431. The only question, therefore, which we have considered, is whether the evidence of the defendant was sufficient to entitle him under proper pleadings to go to the jury.
There is a great difficulty in understanding the defendant’s case, because to a large extent the defendant’s counsel and the plaintiff, while he was testifying in his cross-examination as a witness, were at cross purposes. Throughout the cross-examination
All that there is left, then, is the question whether the plaintiff is cut off from recovering on his notes by reason of his own agreement or understanding with the defendant. The rule of law upon this subject is as follows. If there was evidence sufficient to show that the defendant employed the plaintiff as a broker to make purchases or sales of shares for him, with the agreement or understanding on the part of both that no shares should be actually delivered, but that the plaintiff as a broker should either make bargains to that effect with the other party or parties to the transactions, or at any rate that he should protect the defendant from being called on to make or accept any actual deliveries of shares, then the plaintiff would properly be found to be a participator in an illegal contract, and would be debarred from recovering for his commissions or for moneys advanced by him for the furtherance of such illegal contract. But a mere expectation on the part of the plaintiff and of the defendant that the purchaser of shares would be willing to adjust the transactions on the basis of receiving or paying differences when there was no agreement or understanding to that effect, or to the effect that the plaintiff should protect the defendant from being called on to make or accept any actual deliveries of shares, would not be sufficient to render the contract illegal; and the plaintiff’s participation as a broker in making sales for the defendant under that expectation would not debar him from recovering for his commissions, or for moneys advanced by him for the defendant in aid of the transactions. Harvey v. Merrill, 150 Mass. 1, and cases there cited.
The evidence of the defendant was sufficient to entitle him, under proper pleadings, to go to the jury upon this aspect of the case.
Since it does not appear that the ruling was upon the ground of a variance, it seems to us that a new trial should be granted, at which leave to amend, if deemed necessary by the defendant, may be allowed or refused in the discretion of the court.
New trial granted.