Nolan v. Clark

Strout, J. In August, 1895, plaintiff had four transactions with defendant, by which plaintiff purported to buy of defendant eight thousand bushels of corn, to be delivered at a future-date, and paid to defendant a margin of one cent a bushel each time corn fell in price one cent a bushel. He claims that the transaction was in [45] fact a gambling in margins on tbe future price of corn, and that an actual purchase and sale were not intended or in contemplation by the parties. He seeks to recover back the money paid, under provision of R. S., c. 125, § 8. Defendant claimed that the transaction was one of legitimate business, and so understood by the parties. Upon this contention much evidence was introduced, and it was submitted to the jury, under appropriate instructions, to which no exception is taken, to find whether the transaction was in fact a legitimate business one, contemplating an actual purchase and sale, by both or either of the parties, or whether it was a gambling on the future price. The jury found it to be a gambling and not a business transaction. Upon a careful examinatión of all the evidence, notwithstanding the forms of sale and purchase were observed, we are satisfied with the conclusion reached by the jury. It would be unprofitable to review the evidence in this opinion. The defendant resisted plaintiff’s claim upon another ground. He asserted that he was not the principal, but the agent of the Metropolitan Stock Exchange, and that all that he did was in that capacity ; and that out of the moneys received by him, he retained as his commission one eighth, and remitted the balance daily to his principal in Boston; and that if plaintiff had any claim under the statute, it was against the Metropolitan Stock Exchange., and not against the defendant. Plaintiff claimed that he dealt with defendant as principal, and had no knowledge of any agency, if any existed, and denied that there was any such agency in fact. Upon this issue, much evidence, both oral and documentary, was introduced. The court instructed the jury that “where a party deals with another, and that other lets it be known that he is a mere agent of a party, and is in fact an agent of a disclosed principal, then the party seeking redress for any acts or contracts of that agent that are within the scope of his authority must be against his principal, not against the agent.” “That even if a party is agent of a principal and that person’s name is not disclosed, but the agent deals as though he was the principal, without disclosing an agency to the party dealing with him, then the party [46] desiring redress has an election to sue either the agent or principal when he finds out who he is. If it is not till after the transaction he can sue either.” The court carefully called the attention of the jury to the evidence bearing upon the question, whether defendant was or not in fact an agent of the Metropolitan Stock Exchange, and acting in that capacity in his dealings with plaintiff; and whether such agency, if it existed, was known to plaintiff, or whether plaintiff understood he was dealing with the defendant as principal. The evidence upon this issue was conflicting, but the jury found for the plaintiff; and under the instructions, that finding must have been either that no agency existed, or if it did, that plaintiff was not informed of it, but dealt with defendant as principal. Upon either ground defendant would be personally responsible to plaintiff. We see no sufficient cause to disturb the verdict. The motion for a new trial must be overruled. In regard to the exceptions, the daily statements of transactions between defendant and the Metropolitan Stock Exchange, which had reference to plaintiff’s dealings, were admitted; but like statements, referring only to transactions with other parties, were excluded. The excluded statements had no tendency to prove an agency. They purported to be transactions between the defendant and the Metropolitan Exchange as two principals. They were directed to defendant, and stated “ our transactions with you to-day are as followsthen came a detailed statement. No word of agency appears, or is suggested by the papers. The defendant was not prejudiced by their exclusion. They tended to corroborate plaintiff’s claim, rather than that of defendant. The requested instruction was rightly refused. It asked an instruction that the jury might find an agency of defendant from one piece of evidence alone, excluding the effect of other and contradictory evidence upon that question, and was therefore misleading. It is the province of the jury to determine the fact from all the evidence, not from one detached portion. The instructions given to the jury were full, and amply protected the rights of the defendant. Motion and exceptions overruled.