Wakefield v. Farnum

49 N.E. 640, 170 Mass. 422, 1898 Mass. LEXIS 237

Opinion

Field, C. J.

The first exception of the plaintiff is to the admission as evidence of the written statement made by the defendants to the plaintiff of the purchase of wheat. The ground of this exception is that, as one count of- the declaration is on an account stated, it is not competent to show that the balance found due on accounting was the result of an illegal contract. The paper admitted in evidence showed the purchase of wheat by the defendants on account of the plaintiff at a certain price, and it appeared that by a subsequent sale there resulted a certain sum as profits which, with $500 advanced by the plaintiff to the defendants, made up the amount sued for. The defendant Rear-don contended that this purchase and the subsequent sale were not a real purchase and sale, but were merely a form of wager upon the price of wheat, to be determined by the difference in the quotations at the time of the pretended purchase and sale. The paper was plainly admissible as a part of the transaction which resulted in the balance sued for. It is as competent to show that an account stated originated in an illegal transaction as that a promissory note so originated.

The exceptions state that at the close of the evidence the plaintiff elected not to rely on St. 1890, c. 437. His contention was that the transaction was a bona fide purchase and sale of wheat. The defendant did not rely upon St. 1890, c. 437, but upon the common law. Therefore the first request of the plaintiff for a ruling, that this statute did not apply, need not be considered.

By the second request

* the plaintiff apparently contended that the defendant Reardon had not shown that the contract of purchase made between Baldwin and Farnum in Chicago and the unknown person or persons with whom they dealt was a wagering contract. But the defendant Reardon contended that the contract was made in Boston between the plaintiff and the defendants as principals, and that this was a wagering contract at common law. There was abundant evidence that the defendants as principals dealt with the plaintiff, although they carried out their contracts through their correspondents, Baldwin and Farnum, in Chicago. The two firms had one member in common, Farnum, and they divided the commissions.

The third request is, “That Farnum, Reardon, & Co. were agents, and as such are not entitled to set up the transaction by which the money came to their hands, and therefore the plaintiff should recover.” It does not appear that any money specifically came into the defendants’ hands for the plaintiff. The defendants and Baldwin and Farnum of Chicago kept an account with each other, in which the profits and losses were credited and debited; and the balances, as they happened to be, were paid monthly. Baldwin and Farnum did not know the plaintiff, and had no account with him. The plaintiff’s account was designated between the two firms as Account 17. If the defendants as agents of Baldwin and Farnum had received a certain amount of money to be paid to the plaintiff, it may be that they could not set up in defence that their principals had been engaged with the plaintiff in gambling in wheat. This might be a defence which they could not make if their principals did not choose to make it. But the evidence was such that it was competent for the court to find that the defendants were principals in dealing with the plaintiff.

The court on the evidence was not required to find for the plaintiff.* Harvey v. Merrill, 150 Mass. 1. Barnes v. Smith, 159 Mass. 344.

Exceptions overruled.

This request was as follows: “ The defendant has not shown that the contract in Chicago was a wagering contract, and therefore the plaintiff should recover.”

The fourth request for rulings was that “ on all the evidence in the case the plaintiff should recover.”