Cover v. Smith

Boyd, J., delivered the opinion of the Court. This action was brought by the firm of Smith & Pride, and, Mr. Pride having died while it was pending, the appellee, as the surviving partner of the firm, prosecuted the case and recovered judgment against the appellant for a balance alleged to be due on transactions between them, arising out of the purchase of certain stocks in the months of September, October and November, 1890. In'the course of the trial forty-six exceptions were taken to the rulings of the Court in admitting or rejecting evidence offered. After the testimony was concluded the plaintiff offered two prayers and the defendant twenty-five; one of the former was granted and fifteen of the latter were rejected, and the action of the Court as to them is brought before us' for review by another bill of exceptions. Although the exceptions are thus numerous, the questions presented can be classified so as to materially reduce the number to be passed upon and the main principles involved have been so thoroughly settled by the decisions of this Court as to relieve the case of any great difficulty beyond the labor required in ascertaining from a confusingly voluminous record the material points passed on by the Court below. In order that we may see what the real controversy between them is, it will be well to refer in the beginning to portions of the testimony of the parties to the suit. The appellee testified that he and his partner were stock and grain brokers in Baltimore, and that between the 18th of September and the 6th of November, 1890, they bought for the defendant, through the New York Stock and Produce Clearing House Company, Limited, the stocks mentioned in the account filed with the narr.; that his firm had a contract for the purchase of stocks with that company — 609 — which they showed defendant, who told them to" buy the stocks for him from that company, and that they were purchased under the terms of that contract. He also said that the defendant paid at the times of the purchases what are called “ margins,” and agreed to pay such additional margins as were necessary to keep the stocks to the contract price until the purchase money was paid, when they were to be delivered; that the defendant requested them from time to time to pay to the New York Company the necessary margins, which they did until November 12th, 1890, when they were sold by the New York Company by reason of the failure of the defendant to pay as agreed. The plaintiff claimed, and the evidence offered by him tended to prove that there was an actual sale of the stocks with the understanding that they were to be delivered on payment of the contract price, together with such other sums as might be due for advances made, etc. It was not claimed by him that his firm had the stocks in their own possession, but that they ordered them from the New York Company, at the request of the defendant, and that company purchased and held them ready to be delivered upon payment of the balance of the purchase money. The defendant flatly denied that there was any such agreement, but alleged that “ We were to deal on margins altogether. The plaintiffs were to buy no stocks for him and he was to pay for none * * * That it was understood that there should be no delivery of stocks and no stock bought for delivery; that it was purely a marginal business between them.” • It will thus be seen what the main controversy was and that the difference between the parties as to the character of the transaction was sharply defined, but as we will hereafter have occasion to refer more particularly to some of the other evidence offered, we will not now do so, but will proceed at once to the consideration of the exceptions. As it will be necessary in passing on some of the questions raised to examine all the evidence properly in the record, we will consider at once the objections urged against — 610 — the admissibility of the testimony of Charles H. Platt, which are presented by the 17th to the 28th, inclusive, of the bills of exception. On August 10th, 1891, leave was granted to the plaintiff by the Circuit Court for Carroll County, where this suit was originally' instituted, to issue a commission to take testimony. Interrogatories to be propounded to P. H. Platt, of the city of New York, were filed by the plaintiffs and served August 17th, 1891, on the attorneys for the defendant, together with the name of Gilbert Elliott, as the commissioner suggested by the plaintiff On August 25th exceptions were filed to some of the interrogatories on the ground that they were immaterial, irrelevant, etc., but no commissioner was named by the defendant On October 19th, 1891, a commission was issued to Elliott authorizing him to examine P. H. Platt. On the 30th of November, 1891, the commission and the return of evidence taken by Elliott were filed, by which it appears he had taken the deposition of C. H. Platt, and it was signed Charles H. Platt. On February 1st the plaintiff’s attorneys served on the defendant a notice that the commission had been returned and opened. The defendant then filed exceptions to the issuing of the commission on the ground that it had been issued to one commissioner, and for other reasons particularly set forth and to the execution and return of the commissions upon various grounds which we will not recite, as they have not been urged in this Court. As the defendant received notice of the commissioner proposed by the plaintiff, his failure to name another must be considered a waiver of his right to have two commissioners and a consent to the execution of the commission by the one named. Billingslea v. Smith & Pride, 77 Md. 516. But it is contended that the evidence of Charles H. Platt was inadmissible because the commissioner was authorized to take the testimony of P. H. Platt and not Charles H. Platt, and this objection to his evidence was the one mainly relied on in the argument. The interrogatories filed by the plaintiff show upon their face that they were intended — 611 — to be propounded to a man named Platt who was connected with the New York Stock and Produce Clearing House Company, Limited. There is not the slightest intimation that the defendant was in any way misled by calling the witness, P. H. Platt, instead of C. H. Platt. On the contrary, the record shows that althongh numerous exceptions were filed to the issuance, execution and return of the commission, no objection was made, for the reason we are now considering, until at the trial of the case, which took place in April, 1894. The rule of the Circuit Court for Carroll County, from which the commission issued and to which it was returned, provided that “ If a commission shall have been returned and opened and notice thereof given to the opposite party ten days before the commencement of the term, exceptions to the execution and return thereof shall be filed the 3rd day of the term or they shall be considered as waived.” This notice was served, as above stated, on the 1st of February, 1892. It is manifest that the object of the rule is to prevent injustice being done by having objections raised to the execution and return of the commission when it is too late to correct it ydthout at least continuing the case. If the Court could see that a party to a suit had been misled, intentionally or otherwise, by such a mistake as this, in the name of the witness to be examined, it should undoubtedly remand the commission if a reasonable application be made, but without deeming it necessary to determine whether the evidence taken under such circumstances should be excluded, even on a timely application, unless the opposing party had been, or might have been injured, we think the Court was clearly right in not rejecting this evidence by reason of a misnomer of the witness Platt, as it was too late to raise the objection. We cannot agree with the learned attorneys for the appellant that the objection does not go to the execution and return of the commission, but to the admissibility of the evidence itself. If it be inadmissible because the commissioner took the deposition of C. H. Platt instead of P. H. Platt, that must necessarily affect the — 612 — execution of the commission, for if appellant’s contention be right, the commissioner was not authorized to take or return the evidence of C. H. Platt under that commission. If the testimony of C. H. Platt be competent, material and relevant to the issues, it could only be rejected because it had not been taken in some authorized way. The objection to the commission goes far beyond such questions as the relevancy or materiality of the testimony. It was to the effect that it was not evidence at all, because Elliott had no power to take it, and he had not executed the commission in the manner authorized by the Court. It was therefore necessarily a question affecting the execution and return of the commission, and such objection should have been made as required by the rule of the Court, and not, over two years after it was returned, at the trial of the case. We think, therefore, that the evidence taken under that commission, so far as offered, was admissible, it being relevant and material, and the objections stated in these bills of exception were properly overruled. . Having determined that the evidence of Platt was admissible, it will perhaps be better to consider the rulings of the Court on the prayers before passing on the other exceptions. In this age of speculation and tendency to deal in large transactions with but little capital invested by means of what are called “ margins,” it behooves the Court to apply vigorously the well established principles of law that forbid gambling in all forms and to refuse relief to those coming before them seeking to recover gains tainted with that crime. In many cases the rise and fall of prices' of stocks are not controlled by their intrinsic value, but rather by the greed of those who are willing to ruin their fellows to enrich themselves. Courts cannot be unmindful of the fact that many devices and schemes are resorted to for the purpose of covering unlawful acts with the appearance of what is law. ■ Sometimes such acts are easily detected, but frequently they are so adroitly hidden by what seems fair and permissible, as to make it difficult to unmask them, but — 613 — when possible they should be exposed. Until, however, the Legislature sees fit to pass more stringent laws on the subject, we must rely mainly upon juries to require clear proof that transactions of this kind have been kept within the law, as the Courts can only instruct them as to what the law is, and they must find the facts. This record does not present a state of affairs entirely free from suspicion that there was an effort to evade the law, which requires the purchase of stocks to be made with the understanding that they were actually to be delivered and paid for, but this question seems to have been fully submitted to the jury by the prayers of the defendant which were granted, some of them going beyond what he had a right to demand. By the second praver the jury was instructed that if they be-lived it was mutually understood between the defendant and Smith & Pride, when the orders to buy were given, “ that said transactions were in fact, and were understood and intended to be a dealing in the rise and fall of the market prices of said stocks, and that said stocks were not intended by them to be bought in fact for delivery to the defendant, and that the difference in the rise and fall of said market prices of said stocks and the profits or losses as the case might be, were to be settled and adjusted between said Smith & Pride and defendant by the payment by Smith & Pride to the defendant of the amounts of any rise in said market prices of said stocks, and by payment by defendant to the said Smith & Pride of the amount of any losses on account of any fall of the said market prices, then the plaintiff cannot recover.” By the thirteenth they were instructed that the plaintiff could not recover if they found the facts therein stated, which are in substance the same as those in the second, “ even though the jury shall further find that said Smith & Pride did actually purchase said stocks through their agent in New York and offered to deliver the same to the defendant.” The ninth, sixteenth, seventeenth, eighteenth, nineteenth, twenty-first and twenty-second, which can be found in the statement of facts in the case, together — 614 — with the second and thirteenth already referred to, seem to have covered the defendant’s theories of the case fully. The only prayer offered by the plaintiff which was granted was clearly a proper instruction under the evidence. In the case of Billingslea v. Smith & Pride, 77 Md. 504, where the facts were very similar to those in this case, the Court held that when the contract is that in case of a decline in the market price of the stocks the purchaser is to' pay the difference between the contract price and the market price, and there is no intention that he shall receive and pay for the stock itself, the dealing is a gambling contract, and the law does not permit an action to be maintained upon it, but also said, on page 520, “ There was evidence competent to show that the plaintiffs were buying stock for defendants from the New York Company, and that he knew the terms of the contract between the plaintiffs and the said company, and that having this knowledge he requested them to protect his stocks * * If the jury found these facts they might infer that the defendant approved of the terms upon which the stocks were purchased under the contract between plaintiffs and the New York Company, and that at his request plaintiffs made advances in cash, or by engagements to pay Cash, which he afterwards performed to protect the stocks according to the terms of their contract of purchase. If these facts had been found by the jury, the plaintiffs would have been entitled to a verdict for the amount of their advances on the count for money paid for the defendant at his request; provided the stocks were actually bought by the New York Company and held by it for delivery according to the terms of the contract ***** But ¿f course the defendant would be at liberty to show, if he could, that the contract between the plaintiffs and the New York Company was a device for the purpose of disguising a gambling contract.” The defendant filed special exceptions to the second, fifth, sixth, eighth, eleventh and thirteenth paragraphs of the plaintiffs’ prayer on the ground that there was no evidence — 615 — of the facts stated in them. It is contended that there was no evidence whatever of the execution of the contract of July 5th, 1890, between plaintiffs and the New York Company, which is similar to the one referred to in Billingslea’s case, supra, and will be found in the statement of facts. The plaintiff, Smith, testified that the contract was made, that he had shown it to defendant, who ordered him to buy the stock from that company. The testimony of the witness, Platt, tended to show that the company did in good faith purchase and hold for delivery the stocks at the price charged in the account and his evidence, as well as that of Smith, also tended to prove payments by Smith & Pride to the company at the request of the defendant. In fact the defendant himself admits payments from time to time, and on November 7th he paid $600 in cash and gave the plaintiff his check for $1,797.38, which he did not pay. There was ample evidence from which the jury could find that advances had been made by Smith & Pride for the defendant, leaving the balance claimed in this case. Witness, Platt, swore that they closed out the stocks at the regular Stock Board prices for the full market prices. There was, therefore, legally sufficient evidence of the facts submitted by this prayer, and if the jury believed them the plaintiff was entitled to recover. It was for the jury to determine which of the witnesses were testifying truthfully and whether the contracts for the sale and delivery of the stocks were bona fide. On the statements furnished the defendant on each occasion when he made his purchases there was printed the following : “ H. Pride & Company, brokers, will receive no business except with the understanding that the actual delivery of property bought or sold is in all cases intended, agreed and understood.” Whether that and the provisions in the contract with the New York Company were mere devices to aid in concealing the true nature of the transaction was also for the jury under the instructions of the Court. The defendant’s first, third, fourth, fifth, sixth, seventh, eight and a-half and twelfth prayers were properly rejected — 616 — because there was evidence of such matters referred to in them as were material. Some of them are objectionable on other grounds, but it is unnecessary to discuss them more fully. The eighth might be passed by without further comment, as we have already said there was evidence which justified the granting of the plaintiffs prayer, but it was argued at some length that this prayer raised the question of variance between the pleadings and the evidence and that such existed. It is a dangerous practice to permit such a question to be raised by a general prayer of this kind, as this Court cannot say that the attention of the Court below, or the attorneys for the plaintiff, was in fact called to the alleged variance so as to give an opportunity for amendment, if necessary, in that Court. But if' we treat it as properly before us we cannot hold the objection valid. The declaration contains the common counts, including those for goods bargained and sold, work done and money paid by the plaintiff for the defendant at his request, and' under them the evidence offered is clearly admissible, and if' we regard the account filed with the declaration as having the effect of a bill of particulars regularly filed on the demand of the defendant, which may well be questioned, the evidence is not at variance with the statements in the account. The plaintiff claims that his firm bought for the defendant of the New York Company the stocks on the dates and at the prices named — that the defendant made certain payments with which he was credited and that on November 12th the stocks were sold out at the price named, leaving a balance of $6,741.00. The account might have been stated more in detail. It might have shown on its face that the stocks were brought from and sold by the New York Company, and that the balance was the amount paid by the plaintiffs for the defendant at his request, but if we take the account in connection with the count for money paid for the defendant at his request, it gave the defendant full and ample notice- of the claim made against him. It states the charges and credits in the same manner that the — 617 — one in Billingslea's case did. If the defendant needed further particulars he could have applied for a more detailed statement before pleading. The tenth, eleventh, thirteenth, fourteenth, fifteenth and twenty-third prayers were in all material matters covered by the prayers that were granted. The twentieth was properly rejected, as the burden was not on the plaintiff to prove what was therein stated and the twenty-fourth was clearly bad. (Decided March 24th, 1896.) It would be a useless task to discuss in this opinion the numerous exceptions which were taken to the admission or rejection of evidence. We have carefully considered them all and find no reversible error in them. Many of them are settled by Billingslea's case, supra, some are wholly irrelevant to the issues m the case and others were corrected,- if there was any original error, by the evidence being subsequently admitted, as shown in other parts of the record, thus giving the defendant the benefit of it. We are of the opinion that the law was fairly and properly submitted and no error has been pointed out to us that would justify us in reversing the judgment. Judgment affirmed with costs.