Davy v. Bangs

174 Mass. 238 | Mass. | 1899

Hammond, J.

This is an action brought under St. 1890, c. 437, to recover the value of certain stock. It was tried before the court without a jury, the evidence consisting of the auditor’s report and other evidence oral and documentary.

We think the evidence regarding the rule of the stock exchange was properly excluded. It is sufficient to say that it does not appear that either the plaintiff or Wiggin knew of it.

At the close of the evidence the defendants asked for certain rulings. The court refused the first, second, third, fourth, "and seventh requests, and ruled that the plaintiff was entitled to recover, if she proved that neither she nor Wiggin intended to perform the contracts in question by the actual receipt and delivery of the securities and commodities and the payment of the price, and that the defendants had reasonable cause to believe that no intention to actually perform existed, but that she could not recover unless she proved both these facts; and that she could not recover if either she or Wiggin intended such performance to be made either by her or by him, or by the defendants as her or his agents ; gave the fifth, sixth, eighth, and ninth requests, and found as a fact that the defendants had the reasonable cause to believe mentioned in the statute. Having so ruled, the court found for the plaintiff. To these refusals to rule and rulings given, the defendants excepted.

The defendants contend that the plaintiff must prove that she intended to make wagering contracts, and make such contracts with the defendants, or that they, as her agents, should make such contracts in her behalf, and that there must be a positive intention not to perform the contracts, and they contend that the evidence does not justify a finding for the plaintiff.

In view of the comparatively recent decisions of this court, we do not deem it necessary to enter into a discussion as to the nature of a wagering contract. Harvey v. Merrill, 150 Mass. 1. Barnes v. Smith, 159 Mass. 344.

Section 2, under which the action is brought, is as follows : “ 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 from the other party to the contract, or from the person so employed, any payment made or the value of anything delivered: provided, such other party or other person so employed had reasonable cause to believe that no intention to actually perform existed.”

The language is full, plain, and explicit, and the rulings of the court were in precise accordance with it. Without reciting the evidence, it was ample to justify the finding for the plaintiff.

Assuming that the seventh request properly states the law, we think it became immaterial upon the rulings and findings of the court.

The ruling as to damages was correct. The statute fixes the damages as the .value of the thing delivered.

Judgment on the finding,