Yerkes v. Salomon

Brady, J.: The contracts were not assailable as in contravention of law because, the plaintiff assuming such to be the fact had not at the time they were made the certificate of stock in his possession. The act of 1858, chapter 184 so declares, and therefore the question asked one of the plaintiffs whether, at the date of the contracts, he had the stocks referred to, was properly excluded; and so the exclusion of a kindred question was correctly ruled upon. The plaintiff examined was, however, asked the following question: “ "Was it your intention at the time these contracts, or either of them, were made, to tender or call for the stock, or merely to settle upon the difference ? ” and on objection it was excluded. The defense interposed, as we have seen, was that the contracts were wagers, and if it was the intention of the parties to settle the difference, as they subsequently did, and not to deliver or accept the stock, the defense would be established on the authorities. The statute declares that all stakes, etc., made to depend upon any chance, casualty or unknown or contingent event whatever, shall be unlawful. And, further, that all contracts for or on account of any money or property, or thing in action so wagered, bet or staked, shall be void. The form of the contract does not decide the question, because it would not be difficult to make the contract relating to the bet apparently lawful, while the intent with which it was entered into was to avoid or evade the statute. It is not the form in which the trick or device is presented, but the intent with which it is planned. When the question was asked, therefore, as to the intent, the subject was opened and the inquiry was pertinent. The authorities are abundant upon the proposition that if neither party intended to deliver or accept the shares, but merely to pay differences according to rise or fall of the market, the contract is for gaming. (Grizewood v. Blaine, 73 Eng. Com. Law, 525 ; Brua's Appeal, 55 Penn., 298; Cooke v. Davis, 53 N. Y., 318; Camerons. Durkheim, 55 id., 425; Peabody v. Speyers, 56 id., 230; Bigelow v. Benedict, 16 N. Y. S. C. R., 429; Story v. Salomons, Com. [474] Pleas, MS. opin., Van Hoesen, J.) Tbe intent of tbe plaintiffs was one step in tbe defense, and wben tbe attempt to prove it was rejected, tbe defendant secured tbe advantage of an exception. In Cassard v. Hinman (6 Bosw., 14) the question asked was, “ at tbe time of tbe making tbe writings between you and Cassan, was any thing said by Nathan (tbe broker) as to tbe performance by receipt and delivery of pork, or tbe settlement by payment and receipt of differences, and if so, what ? ” The question was excluded, and it was beld to have been erroneously ruled upon. Tbe inquiry was beld relevant to the defense, which was substantially that tbe contract was a wager. Tbe ruling considered demands, therefore, that a new trial be granted. Ordered accordingly, with costs to abide tbe event. Davis, P. J., and DaNiels, J., 'Concurred. J udgment reversed, new trial ordered, costs to abide event.