Crandell v. White

164 Mass. 54 | Mass. | 1895

Morton, J.

1. The plaintiff was allowed to go to the jury only upon the fourth count, which was for money had and received ; and the first question is one of pleading. At the conclusion of the evidence, the defendant White asked the court to rule that the count did not come within St. 1890, c. 437, and that the plaintiff could not recover. The court refused the ruling, and the defendant duly excepted. The statute, on which this action is based, provides in § 2: “ Whoever contracts to buy or sell upon credit or upon margin any securities or commodities having at the time of contract no intention to perform the same by the actual receipt or delivery of the securities or commodities, and payment of the price, or whoever employs another so to buy and sell on his behalf, may sue for and recover in an action of contract,” etc. An action for money had and received is an action of contract, and comes literally within the terms of the statute. There is nothing to show that the Legislature intended to limit the scope of the action. There was no bill of particulars annexed to the count; but no advantage was taken of that fact by the defendant, either by way of demurrer or by objection that the evidence by which it was sought to sustain the action was not admissible under the count as it stood, as was the case in Rogers v. Newbury, 105 Mass. 533. If a bill of particulars had been called for, very likely the facts in regard to the various transactions, and whether they were legal or illegal, would have appeared from it. If not, the objection could have been met by a motion for additional specifications. The defendant’s request was, in effect, for a ruling that an action for money had and received could not be maintained under the statute. A majority of the court think that it was rightly refused, that it came too late, and that the objection should have been taken by way of demurrer.

2. The defendant asked for a ruling that the statute was unconstitutional, and duly excepted to the refusal of the court so to rule. We discover no ground on which the statute can be held to be unconstitutional. The Legislature may well have deemed the transactions referred to in it a species of gambling. And it is too well settled to require discussion that laws aimed at the suppression of gambling are constitutional. The fact that the statute gives parties a remedy against agents whom they may employ does not render it unconstitutional. A remedy is given against them only so far as they are participants in transactions coming within the condemnation of the statute. Neither is the objection tenable that the statute is unconstitutional because it makes certain conduct prima facie evidence of the existence of a certain fact. Holmes v. Hunt, 122 Mass. 505. And there is nothing in the exceptions to show that the objection arose in regard to any evidence that was offered.

3. The objection to Wonson’s testimony was a general one. If it was admissible, therefore, in any aspect of the case the objection was rightly overruled. He was employed by the plaintiff to buy and sell on his behalf, and was therefore properly made a party defendant under the express terms of the statute. As a person employed by the plaintiff to buy and sell, it was competent for the plaintiff to show that Wonson had no intention to perform the purchase by the actual receipt of the securities and payment of the price, and his own testimony to that was, from the nature of the case, the best attainable. If the defendant White wished the testimony to be limited to its effect as against Wonson himself, assuming that it should have been so restricted, he should have requested the court so to limit it.

4. The defendant White also objected to the introduction of evidence relating to the transactions during the five days next preceding that on which those in suit began. It is a general rule, that separate and distinct acts unconnected with those in suit are not admissible for the purpose of raising an inference that a party did the particular things which he is charged with doing. But we think in this case that the transactions objected to were of such a nature and were so connected with those in suit, and so near to them in time, that they might fairly be regarded as having some tendency to show that the defendant White had reasonable cause to believe that no intention existed actually to perform the contracts which form the basis of the present suit. Under the carefully guarded instructions of the presiding justice, we do not see how the jury could have given them any other effect than that to which they were properly entitled. Exceptions overruled.