Smith v. Bouvier

• Decision Date: 16 January 1872
• Citation: 70 Pa. 325
• Parties: Smith <I>et al. versus</I> Bouvier <I>et al.</I>
• Court: Pennsylvania Supreme Court

70 Pa. 325

Smith et al. versus Bouvier et al.

Supreme Court of Pennsylvania.

January 5, 1872.

January 16, 1872.

January 5th 1872.

Before THOMPSON, C. J., AGNEW and SHARSWOOD, JJ. WILLIAMS, J.

Error to the District Court of Philadelphia: No. 198, to July Term 1870.

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A. Briggs, J. A. Simpson and F. C. Brewster, Attorney-General, for plaintiffs in error, cited Brua's Appeal, 5 P. F. Smith 298.

P. Archer, Jr., and W. L. Hirst, for defendants in error.

The opinion of the court was delivered, January 16th 1872, by THOMPSON, C. J.

Having attentively listened to an earnest and able argument, to convince us of error committed by the learned judge who tried the case below, and a no less able argument to the contrary, by the learned counsel for the defendants in error, we have addressed ourselves assiduously to the task of determining, by principles of law, which party is right in the contest, and the following discloses the result.

The general charge has been considered in order to discover from it the force of special objections to it, as well as to determine whether its instructions were in themselves sufficient for the points propounded. The scrutiny has resulted in satisfying us of its unobjectionable character in both aspects. Certainly a judge who has explicitly announced a given doctrine or view, supposed to be applicable to a case trying, in the general charge, need not repeat the same thing in answer to points. He may refer to his charge for the answer. Error occurs where the judge has said nothing in his charge on the subject-matter of the points, and then neglects or refuses to answer specifically points material to the case. The failure to answer points is not per se error, and, unless the party propounding them can show that they were material and ought to have been answered as prayed, there is no error.

The charge before us, referred to for answers to points submitted by the defendants when examined, will be found to be very sufficient answers to the points raised. There was, therefore, no error in not answering them specifically. The condensation by the learned judge of the aspects of the case into three propositions, was a very satisfactory presentation of the matters to be considered by the jury, and were all sustained by the clearest principles. They will appear in the report of the case.

The main contention in the case, however, was not this, but whether or not the transaction, an ordinary purchase and sale of stocks through the plaintiffs as brokers, was or was not a gambling transaction, and one which should for that reason deprive them from recovering for money advanced and commissions earned. This, the learned judge instructed the jury, would be the character of a transaction where, from the beginning, it was agreed and understood, that the stock dealt for was not intended to be delivered, but that the parties were to settle their mutual wagers on the prices of the stocks, by paying the difference between sales at different times. He further explained, saying, "I submit to you, that if the transaction was a speculation founded upon a real sale and purchase of stocks by the plaintiffs for the defendants, actually sold, bought and delivered, then it was not a gambling transaction and not an unlawful contract."

This was right, but it did not go far enough, according to the theory of the plaintiffs in error. They insisted that the jury should have been instructed that all purchases of stocks, with a view to re-sell and make profit on their rise, or contracts to furnish stocks on time, should be declared gambling transactions and illegal,...