Opinion
Department Two
Hearing In Bank Denied.
Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order denying a new trial.
COUNSEL:
The dealings between the defendants' and plaintiff's agent were in the nature of gambling transactions, and in contravention of the law; being illegal, the money expended thereon may be recovered in an action for money had and received, the plaintiff not being in pari delicto. (Irwin v. Williar , 110 U.S. 499; Lyon v. Culbertson , 83 Ill. 33; 25 Am. Rep. 349; Matter of Chandler, 14 Am. Law Reg., N. S., 310; Bigelow v. Benedict , 70 N.Y. 202; 26 Am. Rep. 573; Kingsbury v. Kirwan , 77 N.Y. 612; Pickering v. Cease , 79 Ill. 328; Rudolph v. Winters, 7 Neb. 125; Gregory v. Wendell , 39 Mich. 344; 33 Am. Rep. 390; Doxey v. Spaids , 8 Ill.App. 549; Norton v. Blinn, 39 Ohio St. 149; Hall v. Marston , 17 Mass. 579; Mason v. Waite , 17 Mass. 563; Knapp v. Hobbs , 50 N.H. 478.) Even if the plaintiff was in pari delicto, the transactions are covered by section 26 of article IV of the state constitution, and the moneys paid may be recovered under that provision of the law.
George D. Collins, for Appellant.
Otto tum Suden, and W. S. Goodfellow, for Respondent.
The transaction was perfectly legal. The mere fact that margins are exacted does not make the contract illegal, nor yet the fact that at the time of the fulfillment one of the parties makes default, and the parties settle upon the basis of the difference between the contract price and the market price at the time of the crash. (Hatch v. Douglas , 48 Conn. 116; 40 Am. Rep. 154; Union Nat. Bank v. Carr , 15 F. 438; Corbett v. Underwood , 83 Ill. 324; 25 Am. Rep. 392; Brua's Appeal , 55 Pa. St. 294; Smith v. Bouvier , 70 Pa. St. 325; Fareira, v. Gabell , 89 Pa. St. 89; Clarke v. Foos, 7 Biss. 540; Sawyer v. Taggart, 14 Bush, 727.)
JUDGES: McFarland, J. De Haven, J., and Fitzgerald, J., concurred.
OPINION
McFARLAND, Judge
This action is, substantially, to recover money alleged to have been given by plaintiff to defendants, who were brokers, to be used by the latter for the former in buying and selling wheat. The business seems to have been profitable for a while, but afterwards ended in a loss. The court found that all of the allegations of the complaint were untrue, and all the allegations of the answer true, and rendered judgment for the defendants; and plaintiff appeals from the judgment and an order denying her motion for a new trial.
We think that the judgment and order should be affirmed. Waiving the question of the alleged illegality of the transactions about wheat -- upon which illegality appellant rests her claim to a recovery -- it appears that the appellant was not an innocent party to such transactions, but took part in and ratified them. Being therefore a party in pari delicto, the law leaves her where it finds her.
The judgment and order are affirmed.