201 Mass. 165 | Mass. | 1909
This is an action of contract brought by the plaintiff to recover from the defendants certain sums of money alleged to have been lost in wagering contracts respecting the sale and purchase of stocks made by the plaintiff with the defendants. There was a verdict for the plaintiff and the case is here on exceptions by the defendants to the admission of evidence, to the refusal of the presiding judge to give certain rulings which were requested, and to certain portions of the charge.
The transactions are alleged to have been entered into through one Gross, who did business in Salem, where the plaintiff lived, and the principal question is whether there was any evidence warranting a finding that Gross was the agent of the defendants, or whether his relation to them was simply that of a customer who
It was not disputed that there was something more than a merely casual relation between Gross and the defendants. To show that the relation was not that of principal and agent, the defendants relied amongst other things on a written contract bearing date November 10,1904, entered into between them and Gross by which, amongst other things, Gross agreed that he would not act as agent for his customers in sending orders to the defendants and would nob state orally or in writing to any person that he was such agent and that all orders sent should be his orders and not the orders of his or the defendants’ customers. This agreement was to run for three months. It had expired before the transactions in question took place
There was evidence tending to show that the sign at the entrance of the building where Gross had his office bore the words “ B. O. Gross, Banker & Broker. Correspondent of Corey & Milliken ” ; that the same words were on his office door; and that the plaintiff received each week through the mail a market letter, so called, put out by the defendants which had upon it the words “ B. O. Gross, Banker & Broker, 60 Washington St., Salem, Mass.” and underneath these the words “Correspondent of Corey, Milliken & Co., Established 1890
There was much testimony, oral and documentary, tending to show that the relation between Gross and the defendants was not that of principal and agent, but that of seller or buyer and customer; that the money deposited by Gross with them was deposited as his money to secure them in regard to transactions entered into between him and them; that the only party that they knew or dealt with was Gross; that they exercised no control or supervision over him or his business or his books; and that the plaintiff must have known and understood and did know and understand that he was dealing with Gross and no one else. But it was for the jury to say, we think, upon all the evidence what the real relations between Gross and the defendants were. They may have thought, and if they did we cannot say that they were wrong, that there had been an unsuccessful attempt on the part of the defendants to enter into relations with Gross which would give them all the benefits which would result from his acting as their agent without subjecting them to any of the liabilities.
There was abundant evidence to warrant a finding that, at the times when the transactions relied upon were entered into, the plaintiff intended that there should be no actual purchase or
The plaintiff’s declaration was for money had and received, and it is well settled that such an action will lie to recover, under the statute, money alleged to have been lost in wagering contracts. Crandell v. White, 164 Mass. 54. The defendant contended and asked the presiding judge to rule that there was a variance in regard to the items between the proof and the declaration, and also excepted to the instructions relating thereto. The contention was, in substance, that the payments were not made when and as alleged. There was evidence tending to show that, as transactions were entered into, deposits were made by the plaintiff with Gross who, as the jury must have found, acted as agent for the defendants, which, according to the terms of the receipts given for them by Gross, were to be held as security for or applied in part payment of any and all transactions between the parties. The presiding judge instructed the jury, amongst other things, that in order to recover the plaintiff had got to show that the items in the declaration were for payments that he had made; that he could not recover for losses as such; that the receipts were for different sums and at different times from the items in the declaration; that the plaintiff contended that the defendants were to hold the money that was paid on the receipts until there was a loss, when payment was to be made of the loss from the money, and that, if the jury found that payments were made in that way, if the defendants or their agent held the money to be applied as a payment equal to the amount of the loss and it was so applied, then it was a payment to that amount and the plaintiff could recover if they found for him on the other branches of the case. But if payment was made and accepted by the plaintiff and defendants according to the receipts then made and accepted by the plaintiff and defendants on account of contracts to buy stock which there was no
The plaintiff was asked whether he ever told Gross where he got the money and he answered “ Yes.” He was then asked what he told him. The defendants objected and excepted to this question. The witness was permitted to answer and replied, “ After I took my loss I told him that I borrowed the money from my boy and my wife and lost it all.” He was then asked where he did get the money, and this also was objected to and admitted subject to the defendants’ exceptions. The witness answered that he borrowed it from his boy. He was further permitted to testify subject to the defendants’ objection and exception that he borrowed $600 altogether from his son and $400 from his wife; that to get money on the People’s Gas he gave a mortgage on his house and told Gross about it; that at the time he started on the margin transactions he had no other property than the house, which he later mortgaged, the $40 dollars and the stock which he bought. We think that this testimony was inadmissible, and we cannot say that it may not have operated to the prejudice of the defendants. It was immaterial where the plaintiff got the money from for the margin transactions or whether he told Gross or not. It is further to be noted that part of the conversation with Gross that was admitted took place after the transactions had been closed.
The instruction which was requested by the defendants to the
Because of the error in the admission of the testimony of the plaintiff as to where he got the money which he used, the entry must be
Exceptions sustained.
The earliest item in the account annexed to the declaration was dated March 20, 1905.
The defendants’ manager testified “ that the market letter ... in evidence was the defendants’, and put out by them, and Mr. Gross might use it as correspondent, as it was labelled; that he had authority to put out the memorandum book that was put out to anybody.”