Opinion
January 21, 1904.
February 26, 1904.
Present: KNOWLTON, C.J., LATHROP, BARKER, HAMMOND, BRALEY, JJ.
The right given by St. 1890, c. 437, to recover money paid on wagering contracts lawfully could be and was restricted as to existing causes of action by St. 1901, c. 459. Following Wilson v. Head, 184 Mass. 515.
CONTRACT, under St. 1890, c. 437, for money alleged to have been paid on wagering contracts between April 15 and May 1, 1901, alleging, that the plaintiffs contracted with the defendants to buy and sell upon margin certain securities and commodities, having at the time of the contract no intention of performing the same by the actual receipt or delivery of the securities or commodities and the payment of the price, and that the defendants had reasonable cause to believe that no intention to actually perform the contract existed. Writ in the Municipal Court of the City of Boston dated January 9, 1902.
St. 1901, c. 459, took effect on June 5, 1901.
On appeal to the Superior Court the case was heard on an agreed statement of facts by Holmes, J., without a jury. The agreed statement of facts disclosed no affirmative intention of the plaintiffs at the time of the contract that there should be no actual purchase or sale of securities. The judge found for the plaintiffs and assessed damages in the sum of $1,256.15. Judgment was entered for the plaintiffs; and the defendants appealed.
W.H. Irish, for the plaintiffs.
J. Cavanagh, for the defendants.
The case as stated in the agreed statement of facts and in the plaintiffs' declaration is within the St. 1890, c. 437, but is not within the law as amended by St. 1901, c. 459. This amendment deprived the plaintiffs of the right of recovery which they previously had. The case is covered by the decision in Wilson v. Head, 184 Mass. 515.
Assuming, as we must for the purpose of this decision, that the agreed statement of facts correctly presents the case, the entry should be,
Judgment for the defendants.