Bauer v. Fabel

Per Curiam, This was an action on a check for $3,262.50 given by the defendant to the plaintiff in payment of the balance due on an account between them which involved the purchase and sale of shares of stock on margin. The money deposited as margin was $2,000, and the balance of the check, $1,262.50, represented profits on purchases and sales that had been made. The jury found that the transaction was a wagering one and by direction of the court rendered a verdict for the amount of the deposit only, with interest. The defendant bought the stocks through a third party to whom he transferred the deposit and from whom he received back the deposit with the profits, and it is at least doubtful whether he should not have béen regarded as an agent who had received money for his principal and could not avoid liability by setting up the illegality of the transaction from which the money came: Smith v. Blachley, 188 Pa. 550 ; Hertzler v. Geigley, 196 Pa. 419. But be this as it may, the transaction in which the deposit was made was closed, and the deposit 160 could be recovered back. In Peters v. Grim, 149 Pa. 163, Repplier v. Jacobs, 149 Pa. 167, and J. C. McNaughton Co. v. Haldeman, 160 Pa. 144, it was held that where wagering transactions in stocks had been closed and there remained nothing in the broker’s hands but the original deposit made by his principal, it could be recovered back. The same rule should apply to the deposit although the profits are in the broker’s possession, where one can be readily and clearly distinguished from the other, and the plaintiff does not require the aid of the original transaction to prove his case. The judgment is affirmed.