Farnum v. Pitcher

• Decision Date: 10 May 1890
• Citation: 151 Mass. 470,24 N.E. 590
• Parties: FARNUM et al. v. PITCHER et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

151 Mass. 470

24 N.E. 590

FARNUM et al. v. PITCHER et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 10, 1890

May 10 1890

HEADNOTES

COUNSEL

L.S Dabney, for plaintiffs.

P.H Hutchinson, for defendants.

OPINION

DEVENS J.

While 13 issues were submitted to the jury, they were to be answered under such instructions from the presiding judge, in the matter of law, as a proper examination and decision of them required. If, as the legal result of the facts as they appeared, it was required that the issues presented, or any of them, should be answered in a particular manner, he might properly direct that such answer should be returned. If, by the answer to certain questions, it necessarily followed that others involved in or related to them should be answered in a particular manner, he might properly so instruct the jury. Equally, if by the answers to certain questions the answers to others became superfluous, he might properly instruct the jury to leave the latter unanswered. As in other investigations of fact by a jury, neither party has any ground of complaint against the course pursued by the presiding judge unless he shall show that some erroneous direction in point of law was given, or other error committed, as by the wrongful admission or rejection of evidence, by which the rights of such party were injuriously affected.

The issues presented were intended to determine whether certain transactions between the plaintiffs and the defendant Pitcher, as to several alleged purchases and sales of corn, were merely gaming transactions, in which no corn was actually bought and sold, or to be bought and sold, but the gain or loss in which pretended purchases or sales was to be ascertained by the differences in the market price at the time of these pretended transactions, or whether they were bona fide transactions, of actual purchase and sale. The transactions between the plaintiffs and defendant took place in Boston, while the purchases and sales, or what were alleged to be such, took place in Chicago, being there conducted by the plaintiffs' correspondent. Besides the matter of defense that the whole series of transactions was gaming, and that no purchases were ever really made on his order, the defendant relied in his answer upon the ground that if any were made the plaintiffs had released and discharged wrongfully the vendors of the corn from the contracts of purchase made on behalf of the defendant. The presiding judge, in general instructions to which no exception was taken, except as hereafter appears, fully defined to the jury gaming transactions and real contracts for the purchase and sale of merchandise, and the differences and distinctions between them.

The defendant objects to the direction of the court to answer the fourth, seventh, and tenth questions in the negative. These questions all relate to the alleged release or discharge of the vendors of the corn from their several contracts, if made on behalf of the defendant. Such direction was correct. Carter v. Goff, 141 Mass. 123, 5 N.E. 471. If the defendant relied upon the fact that there had been such releases or discharges, it was necessary to offer some evidence in support of this defense, and the bill of exceptions distinctly states that there was no evidence that the plaintiffs had ever released or discharged the vendors of the corn from any contract entered into by them on behalf of the defendant in the purchases of corn which were made in compliance with what are called the defendant's "buy orders."

The defendant especially objects to the instruction given in regard to questions 3, 6, and 9, which he considers were a virtual direction that these should be answered in favor of the plaintiff. The controversy arose as to three several transactions between plaintiffs and defendant of the dates, respectively, of September 20th, October 13th, and October 15th. The second, fifth, and eighth questions had been whether the buy orders made by defendant in Boston of these dates, respectively, were gaming contracts or bona fide transactions. The third, sixth, and ninth questions inquired whether the plaintiffs ever did make contracts in Chicago, for the genuine purchases of corn in Chicago, which were included in the buy orders of these respective dates. The learned judge, in regard to these, referring to the instructions which he had given as to the distinction between gaming and bona fide transactions, added that, if the jury should find that these were bona fide transactions, "that answer would be a decided help to you in answering the third, sixth, and ninth, because, if these different orders, and the execution of them, were not gaming transactions, but bona fide transactions,--real and not fictitious,--it would seem as though questions third, sixth, and ninth, relating to the same transactions, as to whether they were genuine or not, would have to be answered on the same lines. This is a matter of suggestion to you, whether it would be of assistance to you in the matter." The judge then recapitulates the various branches of the evidence on the inquiries whether actual purchases were made in Chicago, and submits to the jury the inquiry whether such purchases were genuine, "as distinguished from mere fictions,--mere pretended purchases, by which no property passed on...