Dauler v. Hartley

178 Pa. 23 | Pa. | 1896

Opinion by

Mr. Justice Gbeen,

The controversy in this case is over a fund in the hands of J. G. Hartley & Co., one of the defendants. The money in their possession is claimed by J. M. Campbell, another defendant who is the appellant, and it is also claimed by the plaintiffs. Hartley & Co. make no claim to it whatever, and so far as the contending claimants are concerned they are mere stakeholders. This fact has been found by the master and the finding has been confirmed by the court and is in entire accord with the whole of the testimony. There are certain fundamental facts which are altogether without question, and which must be regarded as established facts in the case. One is that Campbell never placed a dollar of the money with Hartley & Co. Another is that the present plaintiffs actually furnished the whole of the money in dispute and considerably more besides. In point of fact the money was deposited with Hartley & Co. by George W. Kirk, but Kirk received the whole of it from the plaintiffs. It was deposited under an arrangement made between the plaintiffs and Kirk,, who was a broker in stocks and grain, but who was totally irresponsible, and it was deposited in the name of Campbell, not because it was Campbell’s money, but in order that it might be used as margins upon transactions in the purchase and sale oE stocks and bonds, in a purely speculative manner, and not with any intention to make actual purchases and deliveries of the stocks and grain dealt in. It was expressly agreed that the money deposited to the credit of the account called “ J. M. Campbell’’ should not be drawn out on checks of J. M. Campbell without the consent of the plaintiffs. It was well said in the opinion of the learned court below that, ‘* From Campbell and Kirk, down to the last customer, they did not pretend to own a dollar’s worth of commodities in which they assumed to be dealing. Nothing was actually bought or sold in Bedford or elsewhere, but it was a mere matter of wagers, of bookkeeping and the adjustment of balances. The master finds in answer to the plaintiffs’ request, that Campbell ‘acknowledged that he took the trades himself and did nothing towards investing the funds he received in the articles which were supposed to be bought and sold.’ The business was therefore all confined to the little circle made up of Campbell, Kirk and their customers at Bedford.” Turning to Campbell’s testimony we find he said, “ I was receiving from different people; some would buy, some sell. Now all that I needed to go into the market to buy from any brother broker would be the difference between buying and selling. Q. You didn’t trouble your mind about any purchase ? A. I never bought anything directly in the exchange unless they wanted the stock. Q. You understood these transactions here were simply transactions on the differences ? A. I presume they were.”

The case then substantially presents in its leading and dominating features, a deposit of money by the plaintiffs with third persons who are stakeholders, for the purpose of being used as margins in the mere purchase and sale by the defendant, Campbell, of differences in the market prices of stocks and grain, without any actual purchases or sales of stocks or grain in specie. Under all our decisions these are mere wagering contracts and are illegitimate transactions, and the money being still in the hands of the stakeholder and not paid over to the person who made, or who claimed to have made, the transactions, the question is, can money deposited for such uses but not actually paid over be recovered back. Upon that question the authorities cited in the report of the master, the opinion of the court below and the argument for the appellant, are most full and conclusive, and they are very numerous. In fact they are not controverted. A very brief reference only will be necessary.

In the note to Godsall v. Boldero, 2 Smith’s Leading Cases, 8th ed. part 1, p. 319, the doctrine is thus stated: “But it is held in general that so long as the money, staked on the result of a wager, remains in the hands of the stakeholder, it belongs to the person from whom it came, and may be withdrawn by him, notwithstanding the loss of the bet and without the consent of the other party to the contract. ... A notice not to pay will operate as a countermand of the authority implied by the original deposit, and a subsequent payment will be no defense to an action for money had and received.”

In McAllister v. Hoffman, 16 S. & R. 147, we held that-money bet upon an election and deposited with a stakeholder, who, after the event of the election is known, has notice not to pay it over to the winner, may be recovered back by the loser. Said Gxbson, C. J., “ The result of the authorities undoubtedly is that the loser may withdraw his stake at any time before actual payment to the winner.” In Conklin v. Conway, 18 Pa. 329, we held the same doctrine. An action lies against a stakeholder for money deposited by plaintiff with him on a bet, and which the stakeholder has not paid over, or which he has paid to the other party after demand by plaintiff and notice of withdrawal of the bet, or that it had failed through a dispute as to the mode of its decision. To the same effect is the case of Forscht v. Green, 53 Pa. 138.

In Harper v. Young, 112 Pa. 419, we applied the same principle to a case in which the defendant gave a note to pay money lost by another at play, although the note was in the hands of an innocent holder for value. A fraud was also practiced upon the defendant, to induce him to give the note, but we held that the gambling character of the transaction still remained, and avoided the note. In a per curiam opinion, we said, “ The undoubted evidence proves the note in contention was given in a gambling transaction. The fact that a fraudulent device was superadded to induce the giving of the note, did not destroy the gambling nature of the scheme. The note was made payable to the order of the person who won the money in gambling, and in payment of the debt thereby incurred. . . . The foundation of the transaction and also the consideration of the note, both rested on the one gambling operation. Such being the case, and although the note is negotiable in form, it is void even in the hands of a good faith and innocent holder for value.”

In Gaw v. Bennett, 153 Pa. 247, we went one step further, and applied the same rule to a note given to a stock broker by a customer, for whom he had bought and sold stocks at various times, resulting in a loss, for the amount of which the customer gave his promissory note. The present chief justice delivering the opinion after commenting upon the evidence and the function of the jury in connection therewith, said, “ On the contrary we think the testimony tended to prove that the intention of both parties was merely to wager upon the prospective price of said stocks, settle the difference and pay the gain or loss; in other words their transactions throughout, were in fact repeated acts of gambling in the stocks referred to in said accounts, and the jury were warranted by the evidence in so finding. ... In this state the law relating to gambling contracts has been finally settled in a long line of cases, among which are the following,” citing a large number of cases. No difference is made in these cases between those in which the wager was void under the statutes against horse racing and gaming, and those which resulted from wagering stock transactions. Fareira v. Gabell, 89 Pa. 89, was one of the latter kind, and that case is thus referred to in the further course of the opinion above cited: “Also that notes given to a broker to cover losses in stock gambling operations are void; that money advanced by a broker to pay such losses cannot be recovered, nor can the broker’s commissions be recovered, because the whole transaction is unlawful.”

Griffiths v. Sears, 112 Pa. 523, was another instance of the same kind. We there held that a bond, given by way of margin to secure a settlement of differences in a stock gambling transaction, is void for want of a good and legal consideration.

It is not necessary to multiply the references. They, are all in the same direction. If then, actual obligations founded upon the settlement of real transactions in the stock market, which have resulted in loss, where the dealing was upon the basis of margins for speculative operations, are void, how much stronger is the present case where a mere deposit of money was made with a stakeholder, and it has not been paid over, and where, also, there never were any real transactions of purchase and sale, but only a dealing in differences.

We are very clearly of opinion both upon principle and authority, that the moneys deposited with Hartley & Co. were within the control of the plaintiffs at any time before they were paid over to Campbell, and therefore they can be recovered in this proceeding.

Some minor questions are raised in the paper-book, the principal one being the question of jurisdiction. We have no doubt upon that subject. • The money deposited with Hartley, though coming from several different persons was entered in one joint account called “ J. M. Campbell.” A number of transactions were made and a considerable part of the money deposited was paid out. The contest is over the resulting balance, but in order that the balance could be ascertained the accounts would have to be adjusted, and the balance struck. But that could not be done in a separate common law action by each depositor. There could be no adequate remedy except by making all the persons interested parties to the proceeding, and having the accounts adjusted so that the rights of each one could be determined, and as to that each depositor would be entitled to be heard, not only as against Campbell and against Hartley & Co., but as to each other. The accounts are also mutual, representing numerous items of deposit on the one side, and still more numerous transactions on the other. On the ground therefore of inadequacy of the legal remedy, and of mutual accounts, and community of interest in a joint fund which requires an ascertainment and division into several separate interests, and the prevention of a multiplicity of suits, the jurisdiction of equity is undoubted. The fourth head of equity jurisdiction under the act of 1836 is, “ The determination of rights to property or money claimed by two or more persons, in the hands or possession of a person claiming no right of property therein.” While this source of jurisdiction is generally exercised by a bill of interpleader that remedy is not exclusive, and we know of no reason why the jurisdiction undoubtedly conferred by the act should not be exercised under another bill which is more adapted to all the facts of the case. Injunction and discovery were also needed for the purposes of an adequate remedy.

• The other questions raised are without merit and do not need discussion. We are of opinion that the decree of the learned court below was entirely correct and that it should be affirmed. The assignments of error are all dismissed.

Decree affirmed and appeal dismissed at the cost of the appellant.