103 Cal. 213, 15223, Wyman v. Moore

Docket Nº:15223
Citation:103 Cal. 213, 37 P. 230
Opinion Judge:McFARLAND, Judge
Party Name:CORA B. WYMAN, Appellant, v. JAMES MOORE et al., Respondents
Attorney:George D. Collins, for Appellant. Otto tum Suden, and W. S. Goodfellow, for Respondent.
Judge Panel:JUDGES: McFarland, J. De Haven, J., and Fitzgerald, J., concurred.
Case Date:June 26, 1894
Court:Supreme Court of California
 
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Page 213

103 Cal. 213

37 P. 230

CORA B. WYMAN, Appellant,

v.

JAMES MOORE et al., Respondents

No. 15223

Supreme Court of California

June 26, 1894

Department Two

Hearing In Bank Denied.

Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial.

COUNSEL:

George D. Collins, for Appellant.

The dealings between the defendants' and plaintiff's agent were in the nature of gambling transactions, and in contravention of the law; being illegal, the money expended thereon may be recovered in an action for money had and received, the plaintiff not being in pari delicto. (Irwin v. Williar , 110 U.S. 499; Lyon v. Culbertson , 83 Ill. 33; 25 Am. Rep. 349; Matter of Chandler, 14 Am. Law Reg., N. S., 310; Bigelow v. Benedict , 70 N.Y. 202; 26 Am. Rep. 573; Kingsbury v. Kirwan , 77 N.Y. 612; Pickering v. Cease , 79 Ill. 328; Rudolph v. Winters, 7 Neb. 125; Gregory v. Wendell , 39 Mich. 344; 33 Am. Rep. 390; Doxey v. Spaids , 8 Ill.App. 549; Norton v. Blinn, 39 Ohio St. 149; Hall v. Marston , 17 Mass. 579; Mason v. Waite , 17 Mass. 563; Knapp v. Hobbs , 50 N.H. 478.) Even if the plaintiff was in pari delicto, the transactions are covered by section 26 of article IV of the state constitution, and the moneys paid may be recovered under that provision of the law.

Otto tum Suden, and W. S. Goodfellow, for Respondent.

The transaction was perfectly legal. The mere fact that margins are exacted does not make the contract illegal, nor yet the fact that at the time of the fulfillment one of the parties makes default, and the parties settle upon the basis of the difference between the contract price and the market price at the time of the crash. (Hatch v. Douglas , 48 Conn. 116; 40 Am. Rep. 154; Union Nat. Bank v. Carr , 15 F. 438; Corbett v. Underwood , 83 Ill. 324; 25 Am. Rep. 392; Brua's Appeal , 55 Pa. St. 294; Smith v. Bouvier , 70 Pa. St. 325; Fareira, v. Gabell , 89 Pa. St. 89; Clarke v. Foos, 7 Biss. 540; Sawyer v. Taggart, 14 Bush, 727.)

JUDGES: McFarland, J. De Haven, J., and Fitzgerald, J., concurred.

OPINION

McFARLAND, Judge

Page 214

This action is, substantially, to recover money alleged to have been given by plaintiff to defendants, who were brokers, to be used by the latter for the former in buying and selling wheat. The business seems to have been profitable for a while, but afterwards ended in a loss....

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