Barnes v. Smith

• Decision Date: 21 June 1893
• Parties: BARNES v. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

159 Mass. 344

34 N.E. 403

BARNES v. SMITH.

Supreme Judicial Court of Massachusetts, Suffolk.

June 21, 1893

Defendant, in his amended answer, alleged as follows: "And the defendant, further answering, says that if he made the notes mentioned in plaintiff's declaration the considerations for the same are illegal and void. And the defendant says the plaintiff is a broker engaged in the sale and purchase of stocks on margin, so called. And defendant says that he bought certain stocks on margin from the plaintiff; that the notes mentioned in plaintiff's declaration were given by the defendant to the plaintiff in payment of margins alleged to have been paid by plaintiff for defendant on stocks sold by plaintiff to defendant on margin. And the defendant says that at the time plaintiff sold him said stocks on margin, and at the time said margins were alleged to have been paid by plaintiff, for which said notes were given, the plaintiff was not the owner of said stocks, or certificates of stocks, or the assignee thereof, or authorized by the owner or assignee, or his agent, to sell said stocks, and that there was no intention on the part of the plaintiff to deliver the certificates of stock so purchased on margin as aforesaid, and no intention on the part of the defendant to receive the certificates of stock, or pay the price for the same; that there was a mutual understanding between the plaintiff and the defendant that no delivery or receipt of the stock was intended or expected, or any payment of the price of the stock to be made. The defendant further says that the contract, for the furtherance of which the notes mentioned in plaintiff's declaration were given, was a wagering contract, and illegal and void."

COUNSEL

J.N Marshall, M.L. Hamblet, and John C. Burke, for plaintiff.

John J Harvey, for defendant.

OPINION

ALLEN J.

We are not certain that we correctly understand the grounds of defense set up in the amended answer, but it does not appear that the direction of the presiding justice to return a verdict for the plaintiff rested on the ground of variance between the answer and the evidence. Kennedy v Owen, 131 Mass. 431. The only question, therefore, which we have considered, is whether the evidence of the defendant was sufficient to entitle him, under proper pleadings, to go to the jury. There is a great difficulty in understanding the defendant's case, because, to a large extent, the defendant's counsel, and the plaintiff, while he was testifying in his cross-examination as a witness, were at cross purposes. Throughout the cross-examination of the plaintiff the defendant's counsel proceeded on the assumption that the defendant had directed the plaintiff, as a broker, to buy for him certain railroad shares in the market, and it was assumed during a part of the cross-examination that when shares so bought rose in value the defendant would lose money. The court intimated that these questions were immaterial to the issue raised on the pleadings, but the cross-examination proceeded at considerable length, with no intimation that the real transactions conducted by the plaintiff as broker for the defendant were sales of stock on account of the defendant, instead of purchases for him. When the defendant himself became a witness, his counsel assumed, and he testified, that the transactions were directly the reverse, namely, that the defendant had directed the plaintiff, as broker, to sell for him the same number of...