49 N.Y.S. 337 | N.Y. App. Div. | 1898
The action was brought by the assignee of Annie W. Smith and Annie W. W. Smith to recover from the defendant sums of money which the two assignors had sent to the defendant to be used in the purchase of futures in grain in the Chicago market. The claim of the plaintiff is that the money was to be used ostensibly in the purchase and sale of grain in that market for future delivery, but that it was understood between the two assignors and the defendant that no actual delivery of grain should be received or made, but that the entire transactions had with the money should be mere wagers or bets, dependent upon the rise and fall of the prices of grain in the market, which prices fluctuated from day to day, and were unknown and contingent.events.
It was claimed by the plaintiff that these contracts were unlawful under the statute of this State enacting that all wagers,'bets or stakes made- to depend upon any chance, casualty or unknown or contingent event whatever should be unlawful, and providing that such contracts should be void ; and he sought to recover under the authority of that provision of the statute which authorized any person who should deliver or deposit- money upon any such contract to recover it back. (1 R. S. 662, §§ 8, 9.) The defendant admitted that, when the money was delivered to him, it was understood between himself and the assignors of the plaintiff that no actual delivery of the grain should he received or made, but that all the transactions had with the money should be mere wagering contracts upon the rise and fall of prices of grain in the market, which said prices fluctuated from day to day and were unknown and contingent events. But while-admitting these facts, the defendant insisted that the plaintiff was not entitled to recover, because he claimed that, although the contract, as it was admitted to be, was void by the laws of the State of New York, yet that it was not made in the State of New York, but was made in the State of Pennsylvania, and that there was nothing to show either that such a contract was illegal in the State of Pennsylvania ; or, if it wás illegal, that the plaintiff’s assignors being in jyari delioto with the defendant could not recover the money which they had willingly invested in a contract of that kind. There is no doubt that wagering contracts as such were not invalid at common law unless, in addition to being wagering contracts, they contravened
It was made to appear that the defendant lived and had his place of business in Pittsburgh, in the State of Pennsylvania. The evi
It is very doubtful whether the evidence was sufficient to bring home to Irwin any knowledge ■ that the circular was delivered to the plaintiff’s assignors or indeed that it was issued by him. That such a-circular was received by Mrs.- Smith -must be conceded, but that it was sent by Irwin o;r that it was even issued by him, has not been proved. " The' fact that it bore his signature printed upon it is not of itself sufficient, and there was no reference to the circular at the time the money was sent from which it could be inferred that Irwin had any knowledge- that the transaction-had been undertaken on the faith of his advertisement. On the' contrary, Mrs. Smith nowhere suggests that, she made any reference to it in the. letter ' which she sent. For that reason, without going further, there is grave .doubt whether the circular could be regarded as an offer.made by Irwin which was accepted by Mrs, Smith, even if the circular itself could be said to amount to an offer to make a particular contract. But an examination of the circular shows quite clearly that it is not sriceptible of any such construction. It is utterly impossible to say from reading it that any particular contract is proposed to be made. The advantages of a certain mode of dealing, are set .forth in glowing terms,- and the facilities which the signer of the circular had to give to investors the benefit of - these advantages are stated, but it is not possible to gather from the circular what was to be done with the money, except generally that it was to be used for speculative purposes in
Van Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred.
Judgment reversed and new trial granted, with costs in all the courts to the appellant to abide the event.