Wetmore v. Barrett

The Court. This action was brought to recover moneys paid to brokers in consideration of purchases .of mining stock on margins. Most of the points raised are precisely those which were considered in Cashman v. Root, 89 Cal. 373; 23 Am. St. .Rep. 482; As.we are entirely satisfied with the conclusion there reached, it is not necessary to go over the matter again. Defendants had printed the ternas and conditions upon which they were doing business, and required plaintiff’s agent to agree to them. Those printed terms show that the transactions upon which the money was paid w'ere purchases of stock on margins, within Cashman v. Root, 89 Cal. 373; 23 Am. St. Rep. 482. During the time defendants held the stock as security they paid certain assessments, which they now insist should be deducted from the amount recovered. The answer contains no claim for a setoff, nor is there a plea of payment or counterclaim. No such credit seems to have been asked for in the trial court. Had there been such a plea, however, the contention could not have been sustained. There was no request made by plaintiff for the payment; and, as the transaction was void, defendants did not hold the stocks, upon which the'assessments were paid, for plaintiff, or as security for a debt due from him. The law will not, therefore, imply a request to pay nor a promise to repay. go far as the statement shows any indebtedness arising more than two years before the action was commenced, it also shows that such indebtedness was based upon similar transactions to those after that period. We cannot presume that any part of the-moneys recov [249] ered were paid upon any such transactions. - No specification as to the insufficiency of the evidence suggests such point. The judgment and order are affirmed.