Gaw v. Bennett

Opinion by Mr. Justice Sterrett, This suit is on a note made by defendant’s intestate to the order of the plaintiffs for $5,373.89, at six months from August 29,1881. It appears to have been given for balance of ac [254] counts, between the maker and the payees, covering a period of nearly three and a half years. The note, given in evidence by plaintiffs, made a prima facie case, entitling them to a verdict, unless the testimony introduced by defendant was sufficient to justify the court in submitting to the jury, as was done, questions of fact suggested in his points, for charge, recited in the second to fourteenth specifications of error inclusive. As legal propositions, those points, as well as that part of the learned judge’s charge recited in the fifteenth and last specification, appear to be correct. The sole question is whether the evidence was sufficient to warrant the jury in finding the facts of which said points are predicated. This was frankly conceded by the learned counsel for plaintiffs. Having admitted in his printed argument that “ the learned judge stated, with thorough understanding, the law applicable to the case,” he virtually abandoned all his specifications of error, except the first, which alleges the court erred in refusing to charge as requested by plaintiffs in their sixth point, viz.: “ Under all the facts in the case, the verdict must be for the plaintiffs, if the note in suit was executed by defendant’s intestate.” He thus rested his case solely on the proposition that the evidence was insufficient to warrant a verdict in favor of defendant. We quite agree that this is the only debatable question in the case. As to the principles of law enunciated by the learned judge in his charge, and in his affirmance of points presented by both parties, the instructions were, if anything, more favorable to the plaintiffs.than they should have been. In view of the testimony on which the defendant relied, plaintiffs presented eight points for charge, all of which, except the one above quoted, were affirmed without qualification. The jury were thus instructed, inter alia, as follows: 1. If plaintiffs bought and sold stock for defendant’s intestate, paying for and receiving the same in each instance and settling and receiving the money therefor in good faith, then they must find for the plaintiffs, even if they believe said deceased had no intention of ever taking the stocks so purchased or delivering those sold; the fact that he intended to gamble cannot prejudice their case, unless they intended to gamble also. 2. The putting up of margins, retaining possession of stocks [255] and settling of differences are not enough to stamp the transactions as wagers; there must be facts to show that the actual intent of the parties was to wager merely on the prospective price. 3. If the jury do not find from the evidence an intention to wager by both the plaintiffs and the defendant’s intestate, their verdict must be for the plaintiffs. 4. The burden of proof is upon the defendant; it is for him to show, by the weight of evidence, that plaintiffs and decedent were gambling. These points, as well as those of the defendants above referred to, sufficiently indicate the nature of the defence to the note in suit. For the purpose of showing that the transactions referred to in said points were in fact wagering contracts, on the rise and fall of stocks, known as stock gambling, the defendant gave in evidence accounts rendered his intestate from time to time by the plaintiffs, and also their books containing accounts of their stock transactions with defendant’s intestate during several years, and finally culminating in the balance for which the note in suit was given. He also called plaintiffs’ bookkeeper and examined him at considerable length in relation to said accounts rendered and book entries, and also introduced witnesses to prove the financial standing of his intestate, the business in which he was engaged, etc. It is not our intention, nor do we deem it necessary here to review the testimony. The result of the consideration we have given it will be quite sufficient. An examination of the accounts given in evidence, in connection with the oral testimony relating thereto, etc., has failed to convince us that there was any error in submitting the case to the jury for their consideration and determination. Without usurping their appropriate function of considering and weighing testimony and drawing therefrom such reasonable inferences of fact as maybe warranted, the court could not have ruled, as matter of law, that the alleged purchases and sales of stocks by plaintiffs for account of defendant’s intestate were bona fide business transactions, in which there was an actual receipt or delivery of, and payment for the stocks alleged to have been so purchased or sold, or even any intention of either party that said stocks should be delivered or received and paid for, as the case might be. On the contrary, we think the testimony tended to prove that the intention of [256] both parties was merely to wager upon the prospective price of said stocks, settle the difference and pay the gain or loss; in other words, their transactions, throughout, were in fact repeated acts of gambling in the stocks referred to in said accounts, and the jury were warranted by the evidence in so finding. In determining what the intention of the parties was, in that regard, the jury had a right to consider the nature and character of the accounts, the acts of the parties, and all the circumstances surrounding their 'transactions, so far as the same are disclosed by the testimony. They had a right even to go behind the mere form given to their transactions, and ascertain from all the evidence the real purpose of the parties and the actual character of their dealings with each other. In this state, the law relating to gambling contracts has been firmly settled in a long line of cases, among which are the following : Brua’s Ap., 55 Pa. 294; Smith v. Bouvier, 70 Id. 325, 328; Kirkpatrick v. Bonsall, 72 Id. 155; Fareira v. Gabell, 89 Id. 89; North v. Phillips, Id. 255; Dickson’s Ex’rs v. Thomas, 97 Id. 278; Waugh v. Beck, 114 Id. 422; Harper v. Young, 112 Id. 419; Griffiths v. Sears, Id. 523. In Fareira v. Gabell, supra, the judgment of common pleas No. 2 Philadelphia was affirmed on the principles clearly enunciated in the charge of the learned president of that court. It was there held, among other things, that a wagering contract is one in which the parties in effect stipulated that they shall gain or lose upon the happening of an uncertain event in which they have no interest, except that arising from the possibility of such gain or loss; and whether the contract is a wagering one or not is a question for the jury, unless the entire contract, unexplained by oral testimony, is in writing. Also, that notes given to a broker to cover losses incurred in stock gambling operations are void; that money, advanced by a broker to pay such losses, cannot be recovered, nor can the broker’s commissions be recovered, because the whole transaction is unlawful. The testimony in this case was clearly sufficient to warrant its submission to the jury. There was no error in refusing to charge as requested in plaintiffs’ sixth point; nor do we find anything in the record that requires a reversal of the judgment. Judgment affirmed. Me. Justice Mitchell dissented.