No. 2 | Pa. | Feb 11, 1881
delivered the opinion of the court, February 28th 1881.
When, under the case stated, the court below assumed the defendants must be regarded as the agents of Ruchizky in the buying and selling of stocks, in other words, as the mere hand or medium through which he acted in transactions with other parties, it committed an error. An assumption of this kind is in tho very face of the statement before us; the parties were dealing, not in stocks, but margins, and Ruchizky knew no principals but De Haven k Townsend. It was with íhem and no one else he was dealing, and with them alone he had to account. If any shares were bought, they were bought without the remotest intention of passing them to Ruchizky. The idleness of a supposition such as this is made manifest by the fact that the pretended stock purchases amounted to the sum of §472,419.55, on an advancement of §7024.96; nor could the credit of the decedent in this transaction have amounted to anything; for to start with, he was an infant, and therefore had no credit which could be made available in the money market; then again, he was but a clerk on a salary of §500 a year, and had no property of any kind, except that which, in the shape of money or stocks, went into the coffers of the defendants. But the case stated itself settles this matter, for by it we are informed that the several advancements made by the decedent were to be “ held and used by the defendants as collateral security to them, against loss by or on account of purchases or sales made by them for him.”
It is therefore certain that the money paid by Ruchizky was not merely passed by them, for him, to some third party with whom he was dealing, but was retained by them from first to last; first as collateral security, and last as margins, percentage, shaves, &c., which fell to them. Admittedly, then, this was a gambling contract, and, as has been ruled over and over again, twice so late as 8 Norris, in the cases of Fareira v. Gabell and North v. Phillips, transactions in stocks by way of margins, settlement of differences, and payment of the gain and loss, without the intention to deliver the stocks, are mere wagers, and cannot and will not be sustained.
The defendants have endeavored to interpose for their protection the doctrine that where an infant has executed a contract, and has enjoyed the benefit of it, and afterwards on coming of age seeks to avoid it, he must first restore the consideration which he received; that he cannot have the benefit of the one side without restoring the equivalent on the other. This rule may, and certainly does, apply in certain cases, but, as a general rule, it is unsound. Its application was refused in Shaw v. Boyd, 5 S. & R. 309, and, as was said by Mr. Justice Baylies, in Abell v. Warren, 4 Vt. 149" court="Vt." date_filed="1832-01-15" href="https://app.midpage.ai/document/abell-v-brownson-6571377?utm_source=webapp" opinion_id="6571377">4 Vt. 149: “If this be true, then the privilege of infants is not worth possessing.” But all this is foreign to the case in hand, for we have here a contract condemned by public policy — a contract that is not merely voidable but void ab initio. It follows that nothing can be imposed upon the infant as a condition of rescission; that is a result produced by legal policy, and nothing remains but to restore to the infant that which was unlawfully taken from him.
But more than this. Ruchizky got nothing from the defendants, either in the way of stocks or money; hence there was nothing to be restored; to him it was all loss and no gain; the defendants retained both stocks and money. It is therefore idle to talk about the refunding either by Ruchizky or his estate of that which,he never had. His money was paid, not for any species of property, but for a mere chance in the stock lottery. We repeat, therefore, there is nothing to be returned to the defendants; they lost nothing in this transaction, and hence can the more easily return to the plaintiff’s estate that which belongs to it.
The judgment is now reversed, and it is ordered that judgment be entered for the plaintiff in the sum of $5229.04, with interest from August 1st 1876, but on return forthwith, as provided in the case stated, to the plaintiff of twenty shares of the Keystone National Bank, said judgment shall be reduced to the sum of $4329.04, with interest as aforesaid, and. coste of suit.