Farnum v. Whitman

• Citation: 73 N.E. 473,187 Mass. 381
• Parties: FARNUM et al. v. WHITMAN.
• Decision Date: 27 February 1905
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

187 Mass. 381
73 N.E. 473

FARNUM et al.
v.
WHITMAN.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 27, 1905.

Exceptions from Superior Court, Suffolk County; Loramus E. Hitchcock, Judge.

Action by one Farnum and others against one Whitman. There was a judgment for plaintiffs, and defendant excepts. Exceptions overruled.

[73 N.E. 474]

I. R. Clark and [187 Mass. 382]G. F. Ordway, for plaintiffs.

Robt. L. Raymond and Donald Gordon, for defendant.

MORTON, J.

This is an action of contract to recover the loss alleged to have been sustained by the plaintiffs in purchasing for the defendant, pursuant to his orders given in January, 1884, two lots of May wheat, of 5,000 bushels each. The defense is that the contracts were wagering contracts. The plaintiffs had a verdict, and the case is here on exceptions by the defendant to the admission and exclusion of evidence.

1. The defendant offered to show that at the time of entering into the transactions he had no intention of receiving the wheat. He did not offer to show that this was known to the plaintiffs. The evidence was rightly excluded. The transactions were before St. 1890, c. 437, and that statute is not, therefore, applicable, and the question must be determined by the rules of the common law. At common law, in order to render a contract void as a wagering contract, it must appear that both parties understood and agreed, expressly or impliedly, to the things [187 Mass. 383]which constituted it, as matter of law, a wagering contract. This does not rest on grounds peculiar to wagering contracts. The unexpressed or uncommunicated intention of one party to a contract is not binding upon the other party to the contract. In order to be binding, the intention must be common to both. See Marks v. Metropolitan Stock Exchange, 181 Mass. 251, 63 N. E. 410;Allen v. Fuller, 182 Mass. 202, 65 N. E. 31;Harvey v. Merrill, 150 Mass. 1, 22 N. E. 49,5 L. R. A. 200, 15 Am. St. Rep. 159; Bragden v. Metropolitan Ry. Co., 2 App. Cas. 666, 691, per Lord Blackburn; White v. Corlies, 46 N. Y. 467.

2. The plaintiff Reardon testified that the defendant's orders were forwarded to Baldwin & Co., in Chicago, who were the plaintiffs' correspondents, and that in May the plaintiffs bought 10,000 bushels of wheat through Baldwin & Co., who forwarded to them warehouse receipts for the same, and that the plaintiffs tendered these receipts to the defendant, who declined to accept them. No question was made that the receipts were sufficient evidence...