Jones v. Ames

Holmes, J. The plaintiff’s case is that he made certain stock contracts by order of the defendant, and that, in further pursuance of the same order, he paid "the sums which he now seeks to [433] recover in settlement of those contracts. If the ruling that the burden was on the defendant to show that the contracts were illegal and void could reasonably have been understood to have any bearing on the question of the plaintiff’s authority to pay as he did, it might have misled the jury. For, so far as the plaintiff relied on the defendant’s order to make the contracts as containing in itself an implied request to settle them, on the ground that, by the well-known usage of brokers, they purported to bind him personally, the burden lay on him to prove that the order contemplated the contracts which he made, either by proving that it extended to invalid transactions, or that he made valid purchases of stock. But we cannot assume, in favor of the excepting party, that this question was within the scope of the ruling, and it seems to us clear that the instruction was addressed, and must have been understood to be addressed, to a wholly different point. The ruling proceeds on the assumption, evidently concurred in by the counsel on each side, that, if the contracts fell within the Pub. Sts. o. 78, § 6, they were illegal; and that the plaintiff could not recover, even if it were admitted that they were made by the defendant’s authority. The only question dealt with was the burden of proving that supposed defence. If the contracts were illegal, we incline to think that the ruling, thus interpreted, was right on principle. The plaintiff did not sue upon those contracts. His cause of action was a debt springing from the facts that the defendant had requested him to pay money, and that he had paid it. If these facts were proved, and the defendant desired to destroy their effect by showing that they were part of an illegal scheme, it would seem to lie upon him to prove the additional facts necessary to establish that conclusion. We think, however, that the contracts were not illegal, even if they fell within the statute ; and if this be so, it was totally immaterial, for the purposes of defence, as distinguished from the question of the plaintiff’s authority, whether they fell within the statute or not. The Pub. Sts. c. 78, § 6, make certain stockjobbing contracts void, but that is all. The language goes no further than that of the next preceding section, taken from the statute of frauds touching the sale of goods, wares, or [434] merchandise; we see no reason for giving it a greater effect. It deprives the contracts mentioned of the protection of the law, but it does not punish or forbid the performance of them. It is perfectly lawful to keep a promise which is merely void, or to advance money in aid of keeping one; and money advanced for that purpose at the request of the promisor can be recovered from him. The contract on which the plaintiff sues is not the contract against which the statute is directed, and the later Massachusetts decisions have gone far towards establishing his right to recover. Durant v. Burt, 98 Mass. 161, 167. Brown v. Phelps, 103 Mass. 313. Our view is confirmed by the reasoning and conclusion of the English cases. Rosewarne v. Billing, 15 C. B. (N. S.) 316, and Ex parte Pyke, 8 Ch. D. 754, which seem to us sound. See also Beeston v. Beeston, 1 Ex. D. 13. The New York statutes expressly enact that money paid by way of difference may be recovered, and decisions under it are inapplicable here. Staples v. Gould, 5 Seld. 520. It follows from what we have said that the defendant cannot complain of having had the burden thrown upon him of proving a fact, which, if proved, would have been no defence. It is unnecessary to consider how the correctness of this ruling would have been affected by the defendant’s claiming the right to hold the plaintiff to his own testimony, and insisting that by that testimony the contracts which he made were wagers, and void. For, as far as we can see, both parties have assumed throughout that the plaintiff was at liberty to take any position sustained by any of the evidence. And the bill of exceptions, not being directed to this point, does not set forth the plaintiff’s testimony with sufficient exactness to make it safe for us to act upon the view of it which we have suggested. Exceptions overruled.