Lyons v. Coe

• Decision Date: 04 January 1901
• Citation: 177 Mass. 382,59 N.E. 59
• Parties: LYONS v. COE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 382

59 N.E. 59

LYONS v. COE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1901

COUNSEL

Thomas J. Barry and Walter A. Buie, for plaintiff.

W. G Cogswell, for defendants.

OPINION

KNOWLTON J.

As we understand the agreed statement of facts, the defendants, as brokers, were employed by the plaintiff to make contracts for him from time to time to buy stocks; 'neither party having any intention to perform such contracts by the actual receipt or delivery of the shares and payment of the price and each having reasonable cause to believe that the other had no intention to actually perform such contracts.' This we understand to be the meaning of the statements that 'the defendants were stockbrokers,' and that the plaintiff paid the 'defendants the items of cash mentioned in the seventeenth count, amounting to nineteen hundred and fifty dollars, as margins upon contracts,' etc. The seventeenth count of the plaintiff's declaration describes these items as 'cash received by you from me for the purpose of buying securities for me on margin,' etc. It is agreed that 'all the transactions were fictitious, and no actual purchases or sales were ever made.' The contracts entered into were wagering contracts, and were illegal and void, as against public policy. Harvey v. Merrill, 150 Mass. 1-11, 22 N.E 49, 5 L. R. A. 200; Northup v. Buffington, 171 Mass 468, 51 N.E. 7. So far as they were executed, neither party, at common law, can recover that which he lost. It is conceded that the plaintiff's case comes within St. 1890, c. 437, § 2, and that he establishes a right to recover the amount claimed in the seventeenth count of his declaration. The only question of difficulty in the case arises under the defendants' declaration in set-off, in which they seek to recover a larger sum for money paid by them in the execution of such contracts entered into with the plaintiff, and as sums due him on closing the contracts. This calls for a construction of the section just cited. This is as follows: 'Sec. 2. Whoever contracts to buy or sell upon credit or upon margin, any securities or commodities, having at the time of contract no intention to perform the same by the actual receipt or delivery of the securities or commodities and payment of the price, or whoever employs another so to buy and sell on his behalf, may sue for and recover in an action of contract, from the other party to the...