Bangs v. Hornick

• Decision Date: 21 February 1887
• Citation: 30 F. 97
• Parties: BANGS v. HORNICK.
• Court: U.S. District Court — District of Minnesota

30 F. 97

BANGS v. HORNICK.

United States Circuit Court, D. Minnesota.

February 21, 1887

BREWER J.

This was an action on a promissory note. Defendant pleaded that it was void because given for a gambling debt. I instructed the jury that the defense was not made out. A verdict was thereupon returned for the plaintiff. The principal question therefore, is whether the testimony shows the consideration of the note was a gambling transaction; or, perhaps more correctly, whether it left a doubtful question of fact, and one which the jury alone were authorized to decide. The defendant was the principal witness in his own behalf,-- a young man of great candor, and one who, though largely interested in the result, made no effort to conceal or distort anything, and most unquestionably stated the facts as he knew them, and only those that he knew; and, if I could see any possible way to do so, it would give me great pleasure to relieve him from the burden of this judgment.

The facts are these: In 1881, the defendant, then living in Chicago, thought to make money speculating in stocks, and employed the firm of Lester & Co., brokers in that city, to buy and sell for him. Whenever he wished to buy, he left orders with them to make the purchase, depositing a sum varying from 3 to 10 per cent. as a margin; and, whenever he wished to sell, he similarly instructed them to sell. If by the transaction a profit was made, his account was credited with that amount, less the commission; and, if loss resulted it was in like manner debited therewith. He never received any certificates of stock, never saw any, and did not of his own knowledge know whether any were ever bought or sold. The deposition of Mr. Lester, one of the firm, was read in behalf of the plaintiff, and he testified that, upon receipt of instructions to buy or sell, the same were telegraphed by his firm to their agents in New York city, and, so far as he knew, were complied with by their agents in the actual purchase or sale. Defendant insists that this whole deposition should have been excluded, because of the failure of the witness to answer certain questions. Assume that to be correct, and it leaves the case with simply the testimony of defendant that he ordered the purchase and sale of stocks and that he does not know whether there were purchases or sales. Outside of the depositions there is not the first scintilla of testimony as to what was in fact done or intended to be done by Lester & Co. Now, it is doubtless true that where there is in fact no purchase or sale of stocks and none intended by both parties, but simply a wager intended on the rise or fall of prices, the transaction is a gambling one, and cannot be upheld; but it is equally true and...