82 Md. 586 | Md. | 1896
delivered the opinion of the Court.
This action was brought by the firm of Smith & Pride, and, Mr. Pride having died while it was pending, the appellee, as the surviving partner of the firm, prosecuted the case and recovered judgment against the appellant for a balance alleged to be due on transactions between them, arising out of the purchase of certain stocks in the months of September, October and November, 1890. In'the course of the trial forty-six exceptions were taken to the rulings of the Court in admitting or rejecting evidence offered. After the testimony was concluded the plaintiff offered two prayers and the defendant twenty-five; one of the former was granted and fifteen of the latter were rejected, and the action of the Court as to them is brought before us' for review by another bill of exceptions. Although the exceptions are thus numerous, the questions presented can be classified so as to materially reduce the number to be passed upon and the main principles involved have been so thoroughly settled by the decisions of this Court as to relieve the case of any great difficulty beyond the labor required in ascertaining from a confusingly voluminous record the material points passed on by the Court below. In order that we may see what the real controversy between them is, it will be well to refer in the beginning to portions of the testimony of the parties to the suit.
The appellee testified that he and his partner were stock and grain brokers in Baltimore, and that between the 18th of September and the 6th of November, 1890, they bought for the defendant, through the New York Stock and Produce Clearing House Company, Limited, the stocks mentioned in the account filed with the narr.; that his firm had a contract for the purchase of stocks with that company
• It will thus be seen what the main controversy was and that the difference between the parties as to the character of the transaction was sharply defined, but as we will hereafter have occasion to refer more particularly to some of the other evidence offered, we will not now do so, but will proceed at once to the consideration of the exceptions.
As it will be necessary in passing on some of the questions raised to examine all the evidence properly in the record, we will consider at once the objections urged against
As the defendant received notice of the commissioner proposed by the plaintiff, his failure to name another must be considered a waiver of his right to have two commissioners and a consent to the execution of the commission by the one named. Billingslea v. Smith & Pride, 77 Md. 516. But it is contended that the evidence of Charles H. Platt was inadmissible because the commissioner was authorized to take the testimony of P. H. Platt and not Charles H. Platt, and this objection to his evidence was the one mainly relied on in the argument. The interrogatories filed by the plaintiff show upon their face that they were intended
. Having determined that the evidence of Platt was admissible, it will perhaps be better to consider the rulings of the Court on the prayers before passing on the other exceptions. In this age of speculation and tendency to deal in large transactions with but little capital invested by means of what are called “ margins,” it behooves the Court to apply vigorously the well established principles of law that forbid gambling in all forms and to refuse relief to those coming before them seeking to recover gains tainted with that crime. In many cases the rise and fall of prices' of stocks are not controlled by their intrinsic value, but rather by the greed of those who are willing to ruin their fellows to enrich themselves. Courts cannot be unmindful of the fact that many devices and schemes are resorted to for the purpose of covering unlawful acts with the appearance of what is law. ■ Sometimes such acts are easily detected, but frequently they are so adroitly hidden by what seems fair and permissible, as to make it difficult to unmask them, but
The only prayer offered by the plaintiff which was granted was clearly a proper instruction under the evidence. In the case of Billingslea v. Smith & Pride, 77 Md. 504, where the facts were very similar to those in this case, the Court held that when the contract is that in case of a decline in the market price of the stocks the purchaser is to' pay the difference between the contract price and the market price, and there is no intention that he shall receive and pay for the stock itself, the dealing is a gambling contract, and the law does not permit an action to be maintained upon it, but also said, on page 520, “ There was evidence competent to show that the plaintiffs were buying stock for defendants from the New York Company, and that he knew the terms of the contract between the plaintiffs and the said company, and that having this knowledge he requested them to protect his stocks * * If the jury found these facts they might infer that the defendant approved of the terms upon which the stocks were purchased under the contract between plaintiffs and the New York Company, and that at his request plaintiffs made advances in cash, or by engagements to pay Cash, which he afterwards performed to protect the stocks according to the terms of their contract of purchase. If these facts had been found by the jury, the plaintiffs would have been entitled to a verdict for the amount of their advances on the count for money paid for the defendant at his request; provided the stocks were actually bought by the New York Company and held by it for delivery according to the terms of the contract ***** But ¿f course the defendant would be at liberty to show, if he could, that the contract between the plaintiffs and the New York Company was a device for the purpose of disguising a gambling contract.”
The defendant filed special exceptions to the second, fifth, sixth, eighth, eleventh and thirteenth paragraphs of the plaintiffs’ prayer on the ground that there was no evidence
The defendant’s first, third, fourth, fifth, sixth, seventh, eight and a-half and twelfth prayers were properly rejected
It would be a useless task to discuss in this opinion the numerous exceptions which were taken to the admission or rejection of evidence. We have carefully considered them all and find no reversible error in them. Many of them are settled by Billingslea's case, supra, some are wholly irrelevant to the issues m the case and others were corrected,- if there was any original error, by the evidence being subsequently admitted, as shown in other parts of the record, thus giving the defendant the benefit of it.
We are of the opinion that the law was fairly and properly submitted and no error has been pointed out to us that would justify us in reversing the judgment.
Judgment affirmed with costs.