McLean v. Stuve

• Decision Date: 18 March 1884
• Citation: 15 Mo.App. 317
• Parties: HECTOR D. MCLEAN, Appellant, v. BERNARD STUVE, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 317

HECTOR D. MCLEAN, Appellant,

v.BERNARD STUVE, Respondent.

St. Louis Court of Appeals, Missouri.

Mar. 18, 1884.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

G. M. STEWART, for the appellant: It has been held that a broker may recover for his services and advances though rendered and made in wager contracts.--16 Cent. L. J., 225; Roundtree v. Smith, 2 Sup. Ct. Rep. 630. When the contract is made in good faith by the broker, and there is no proof of improper intentions on the part of the person to whom he sells or from whom he buys for his principal, he may recover irrespective of the intention of his principal.-- Kent v. Miltenberger, 12 Mo. App. 503; Bartlett v. Smith, 13 Fed. Rep. 263; Lehman v. Strassberger, 2 Woods C. C. 554; Durant v. Burt, 98 Mass. 167; Sawyer v. Taggart, 14 Bush, 727; Hatch v. Douglass, 48 Conn. 116, 128. The court should not have rendered judgment without notice to the parties.-- Lawrence v. Shreve, 26 Mo. 492; Huthsing v. Mans, 36 Mo. 101, 109.

FRED. T. LEDERGERBER and HUGO MUENCH for the respondent: The “deals” or transactions, advances on which are sought to be recovered are wagers.-- Dickinson v. Thomas, 98 Pa. St. 278; Waterman v. Buckland, 1 Mo. App. 45; Williams v. Tiedeman, 6 Mo. App. 269; Given v. Sims, 61 Mo. 339. In such cases the broker can not recover.-- Ream v. Hamilton,--Mo. App.--; Levy v. Loeb, 85 N. Y. 367, 371, 372. A non-suit can not be taken after the cause has been submitted.-- Hesse v. Ins. Co., 21 Mo. 93; Lawrence v. Shreve, 26 Mo. 492.

THOMPSON, J., delivered the opinion of the court.

This was an action for moneys expended by the plaintiff's assignor, W. P. Rickart, at the request of the defendant, in buying and selling wheat and corn for future delivery. The answer sets up, among other defences, by appropriate averments, that the transactions were mere wagers upon the state of the market. There was substantial evidence to the effect that Rickart, being a broker, entered into an arrangement with the defendant whereby Rickart should buy and sell for future delivery for the defendant the commodities named, so manipulating the transactions that no delivery in fact should take place, but that the “deals” should be closed and settled by new sales and purchases, or by the settlement of differences, before the time for delivery in any case should arrive; that, in pursuance of such arrangement, he kept a running account with the defendant, charging the defendant with losses, with “margins” which were called, and with commissions, etc., and crediting him with gains upon the various transactions. It distinctly appears from the testimony of the defendant, that it was understood at the outset that none of the commodities bought or sold should be received or delivered. There was, therefore, substantial evidence warranting the trier of the fact in finding that these were not intended in their inception to be bona fide sales and purchases, but that they were intended to be mere bets or wagers upon the future state of the market. If this were so, they were such contracts as the law condemns, and as courts of justice will not enforce. Waterman v. Buckland, 1 Mo. App. 45; Williams v. Tiedemann, 6 Mo. App. 269; Kent v. Miltenberger, 13 Mo. App. 503; Ream v. Hamilton, post, p.--.

1. The case was tried by the court without a jury, and the verdict and judgment were for the defendant. The court gave a very full series of declarations of law, which show that the case was carefully tried in conformity with the last decision of this court which had, at that time, been rendered upon the question. Kent v. Miltenberger, supra. In addition to the instructions given, the learned judge of the circuit court drew up in writing a very clear summing up of his conclusions upon the facts of the case, showing that he placed his decision upon the ground that the evidence showed that the transactions were mere bets or wagers upon the future state of the market, within the rule of law as declared by that case. This summing up very clearly vindicates his conclusion upon the facts; but it is sufficient for us to see that there was substantial evidence in support of such a conclusion; we have nothing to do with the weight of the evidence. In favor of such a conclusion, the evidence is much stronger in this case than in the recent case of Ream v. Hamilton ( supra), where we found ourselves unable to disturb a similar finding of fact.

There remains no other question to be considered upon the merits, except the contention of the plaintiff that, although as between the defendant and the ultimate party with whom the sales and purchases were made, these were unlawful transactions, yet this does not preclude the broker, through whose agency they were made, from recovering his losses in respect of them. This question was before us in Ream v. Hamilton ( supra), and we held that where a broker engages in such enterprises with knowledge of their unlawful character, he can not recover for any losses which he may thereby sustain. The instruction asked on behalf of the plaintiff to the contrary effect was, therefore, rightly refused. Indeed, there was evidence in this case which had a tendency to make the...