Bingham v. Scott
| Decision Date | 30 November 1900 |
| Citation | 177 Mass. 208,58 N.E. 687 |
| Parties | BINGHAM v. SCOTT. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
F. P. Goulding and W. C. Mellish, for plaintiff.
Herbert Parker and David Maning, for defendant.
This is an action, under St. 1890, c. 437, to recover for payments made by the plaintiff's testator upon certain alleged wagering contracts. The case was referred to an auditor, and at the trial the only evidence before the presiding justice was the auditor's report. It appeared from the auditor's report that the plaintiff's testator paid the defendant, from time to time, various sums of money, as margins, on five different contracts; four relating to different stocks, and one to May wheat. In four of these including that relating to May wheat, the auditor found that the defendant acted wholly as the agent or employé of a firm known as Baldwin Bros., and did not act as the agent or employé of the plaintiff's testator; that the contracts were signed, 'Baldwin Bros., C. N. S.;' and that the money paid by plaintiff's testator to the defendant was immediately deposited by him in bank, to the credit of Baldwin Bros. The auditor further found that in each of these four transactions the plaintiff's testator had no intention to perform the contract, by the actual receipt of the certificates of stock and of the wheat; that the stocks and wheat were contracted for, to be carried with Baldwin Bros. on margins; and that the defendant had reasonable cause to believe that no intention existed at the time of the several payments to actually perform the contracts by the delivery of the certificates of stock and of the wheat contracted for, and the payment of the price therefor. The other transaction related to 25 shares of New York Central Railroad stock. The auditor found in reference to this that the plaintiff's testator requested the defendant to contract for this stock in his (defendant's) name, the same to be carried on margins for the use and benefit of plaintiff's testator; that defendant consented to do this, and contracted with M. H. Bemis & Co. (a firm of brokers) for said stock in his (defendant's) name, the same to be carried on margins; and that plaintiff's testator gave the defendant money from time to time to pay on and carry said stock, and the defendant gave him receipts therefor, signed by himself, stating that the money was received as margins on 25 shares of New York Central Railroad stock, 'being carried on margin with M. H. Bemis & Co.' The auditor further found that in this transaction the defendant was not the agent or employé of Bemis & Co., and that 'there was no agreement or understanding between plaintiff's testator and the defendant that defendant should be paid anything by plaintiff's testator for this service; that he never was paid anything; and that the understanding between the parties was that the service rendered was a friendly act, without compensation, for the accommodation of the plaintiff's testate, who did not wish to buy in his own name.' The auditor also found, as in the other transactions, that at the time of the several payments the plaintiff's testator and the defendant had no intention to perform the contract by the actual receipt of the stock and the payment of the price. The presiding judge ruled that the plaintiff was not entitled to recover, and found for the defendant. The plaintiff excepted to this ruling, and the case is here on a report made by the presiding judge at his request.
The statute under which the action is brought provides that 'whoever contracts to buy or sell upon credit or upon margin any securities or commodities, having at the time of contract...
To continue reading
Request your trial