MacDonald v. Gessler

57 A. 361, 208 Pa. 177, 1904 Pa. LEXIS 723

Opinion

Opinion by

Mr. Justice Thompson,

This suit was brought upon duebill given by appellant to appellee and the defense was that it was given in a gambling transaction. In the trial below the court rejected appellant’s offer to prove that he had not intended to pay outright for the stock and that in his dealings with the appellee he never paid full price for the stock or received any certificates therefor, and these rulings were assigned for error.

As it takes two parties to make a bargain, so it takes two intentions to make a gambling transaction. The offer was to prove that the appellant himself did not intend to pay outright for the stocks purchased but it did not include also what the appellee intended in the transaction. To hold that when an order for the purchase of stock is given and the purchaser when he gives it intends the transaction to be a gambling one, that the stockbroker is also a party to a transaction of that character, when he had no knowledge of such intention on the part of such purchaser and had none of his own, would be to impute wrongful purpose without reason.

In Young v. Glendenning, 194 Pa. 550, the court below in its conclusions of law, affirmed by this court, held that the intention to gamble must be shown to be the intention of both parties and not that of one alone, and in Irwin v. Williar, 110 U. S. 499,

Footnotes

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* it was held that the proof of such a transaction must establish a mutual understanding. But in this present case the appellee who was called as for cross-examination testified that he understood that the appellant wanted the stocks in question purchased outright and that the appellant told him that he owned his saloon and house on Poplar street, and that consequently he had unlimited credit with the appellee. He further testified that he was always ready to deliver certificates of stock and that he was ready to deliver the certificates for the stocks so purchased at any time that he was called upon to do so. It is manifest that under such circumstances the mere intention of the appellant could not give the transaction a gambling character.

The rejection by the court below of appellant’s offer to prove that appellee ran what is commonly known as a “ bucket shop,” and that his customers simply gamble upon stocks and never have any intention of purchasing outright and that appellant had numerous dealings with the appellee, was also assigned for error.

The “ bucket shop ” seems of comparatively late origin and doubtless it is a product of the speculative spirit which has prevailed pre-eminently during the last quarter of a century. Its name may possibly spring from the diminutive character of the operations there conducted. It may well be that nearly all of the transactions made there are of an understood wagering character and the definition that a “bucket shop ” is a place where wagers are made upon the fluctuations of the market price of stocks and grain or other commodities, as stated in Bryant v. Telegraph Company, 17 Fed. Repr. 828, may be correct, but a place should not necessarily stamp its character upon a particular transaction and especially should not in this case where the proof, coupled with a denial that the duebill was given in a gambling transaction, was that the appellee was actually ready to deliver the stock purchased. A deduction that it was given in one of a gambling character simply because the appellee ran a “bucket shop ” has no substantial warrant and may aptly be characterized as extravagant. Clearly whether the appellee did or did not make returns to the United States government and pay a tax on a “ bucket shop ” was immaterial and irrelevant and the offer to prove the same was properly rejected by the court below.

The assignments of error are not sustained and the judgment is affirmed.

Also reported 4 Sup. Ct. Repr. 160. — Reporter.