Sec 453

A contract to purchase shares of stock or other chattels, as a mere speculation, without any intention of receiving and holding them, is void as a gambling transaction under the English statute.7 In this country we have a series of decisions holding such agreements to be invalid wherever the understanding between the parties is that there is to be no delivery but that only the difference between the contract price and the market price at a designated time is to be paid.1 that there was no real contract of sale, but that the whole thing was to be settled by the payment of differences. It clearly was a gambling transaction within the meaning of the statute."

A contract to purchase stocks or other chattels withofficer); Thomas v. Cronise, 16 Ohio, 54; Hasket v. Wooton, 1 Nott & McC. 180; Rice v. Gist, 1 Strobh. 82; Martin v. Torrill, 12 Sm. & M. 571; Carrier v. Brannon, 3 Cal. 328. A note payable "on the election of R. B. Hayes to the office of president" is void as against public policy. Lockhart v. Hullinger, 2 Ill. Ap. 465. As to Illinois statute, see further Jackson v. Foote, 13 Rep. 707 (U. S. Cir. Ct. Ill. 1882). 1 App v. Coryell, 3 P. & W. 494. See Oulds v. Harrison, 10 Ex. 572.

2 Collamer v. Day, 2 Vt. 144; Tarle-ton v. Baker, 18 Vt. 9; Morgan v. Beaumont, 121 Mass. 7; Patterson v. Clark, 126 Mass. 531. So in England, Hampden v. Walsh, L. R. 1 Q. B. D. 189; supra, sec 351; infra, sec 729.

3 Ruckman v. Pitcher, 1 Comst. 392; S. C, 20 N. Y. 9; Wooaworth v. Bennett, 43 N. Y. 273. See infra, sec 754.

4 Harris v. White, 81 N. Y. 532; Alvord v. Smith, 63 Ind. 58.

5 People v. Sergeant, 8 Cow. 139.

6 Folger, C. J., Harris v. White, 81 N. Y. 539. "It was not illegal, at common law, to make a bet or wager on a horserace; and an action to recover a wager won has been maintained. M'Allester v. Haden, 2 Camp. 438; Blaxton v. Pye, 2 Wils. 309; Gibbons v. Gouverneur, 1 Denio, 170;" Folger, C. J., 81 N. Y. 544. See infra, sec 759.

7 Benj. on Sales, 3d Am. ed. sec 542a. In Grizewood v. Blane, 11 C. B. 526, Jervis, C. J., left the question to the jury to say, "whether either party meant to purchase or sell the shares in question," telling them, if they did not, the contract was, in his opinion, a gambling transaction, and void. On a motion afterwards for a new trial, the opinion of the chief justice was sustained, Creswell, J., among other observations, saying: " As to the evidence, I think it abundantly warranted the jury in coming to the conclusion out any intention of receiving or delivering them, is void.

1 Porter v. Viets, 1 Biss. 177; Young ex parte, 6 Biss. 53; Green in re, 7 Biss. 338; Clarke v. Foss, 7 Biss. 540; Rumsey v. Berry, 65 Me. 570; Noyes v. Spaulding, 27 Vt. 420; Simpson v. Shaw, 101 Mass. 185; Bigelow v. Benedict, 70 N. Y. 202; Story v. Salomon, 71 N. Y. 420; Kingsbury v. Kirwan, 77 N. Y. 612; Harris v. Tumbridge, 83 N. Y. 95; Brua's App., 55 Penn. St. 294; Smith v. Bouvier, 70 Penn. St. 325; Maxton v. Gheen, 75 Penn. St. 166; Swartz's App., 3 Brewst. 131; Fareira v. Gabell, 89 Penn. St. 89; North v. Phillips, 89 Penn. St. 250; Gheen v. Johnson, 90 Penn. St. 38; Dickson v. Thomas, 97 Penn. St. 278; Ruchizky v. De Haven, 97 Penn. St. 202; Lyon v. Culbertson, 83 Ill. 33; Gregory v. Wendell, 39 Mich. 337; Barnard v. Backhaus, 52 Wis. 593; Sawyer v. Taggert, 14 Bush, 727; Williams v. Garr, 80 N. C. 294; and cases cited Wald's Pollock, 277; Biddle on Stockbrokers, 299.

In Kirkpatrick v. Bonsall, 72 Penn. St. 165, Agnew, J., said: "We must not confound gambling, whether it be in corporation stock or merchandise, with what is commonly termed 'speculation.' Merchants speculate upon the future prices of that in which they deal, and buy and sell accordingly. In other words, they think of and weigh - that is, speculate upon - the probabilities of the coming market, and act upon this lookout into the future in their business transactions; and in this they often exhibit high mental grasp and great knowledge of business, and of the affairs of the world. Their speculations display talent and forecast, but they act upon their conclusions and buy or sell in a bona fide way."

In Barnard v. Backhaus, 52 Wis. 593, Cole, J., after quoting the above, added: "And the law does not condemn such transactions, providing the intention really is that the commodity shall be actually delivered and received when the time for delivery arrives. Consequently no legal objection exists to such time contracts, which are to be performed in the future by the actual delivery of the property by the vendor, and the receipt and payment of the price by the vendee, if the contract is in writing; and it is also true that a contract for the sale of goods to be delivered at a future day is not invalidated by the circumstance that at the time the contract was made the vendor has neither the goods in his possession nor has entered into an agreement to. buy them. A party may go into the market and buy the goods which he has agreed to sell and deliver. Therefore a contract to deliver at a future day is not necessarily a wagering or gambling contract. But when such a contract is made as a cover for gambling, without any intention to deliver and receive the grain, but merely to pay and receive the difference between the price agreed upon and the market price at such future day, then it comes within On the other hand, where a broker employed to speculate on shares pays his principal's losses, according to custom, the the statute of gambling, and is void in law. Where some of the transactions between the parties which enter into the consideration of a note and mortgage are mere gaming transactions, they render the whole security void. In the case In re Green, 7 Biss. 338, Hopkins, J., said: 'They advanced the margins at the time to make the gaming contract, and without their aid in that respect the contracts would not have been made. So if these contracts are gaming contracts, they must be held to have advanced the money for margins to make them, and their claim for repayment falls within the prohibited class mentioned in the act. They made the illegal contracts and advanced the money required to give them colorable validity. To take their case out of the statute would be establishing a most flagrant evasion of its provisions.' "