Cover v. Smith

Depositions — Objections to the Execution of the Commission — Contract for the Purchase of Stocks on Margin — ■ When Broker May Recover for Advances Made by Him — Gaming Contract — Bona Pides — Question for the fury — Variance Between Pleading and Evidence. Under a commission to take the testimony of non-resident witnesses, interrogatories were filed to be propounded to P. H. Platt. Upon the return of the commission it appeared that the deposition of C. H. Platt was taken. A rule of the trial Court provided that upon the return of a commission and notice to the opposite party, exceptions to the return should be filed before a certain day or be considered waived. No objection was then made to the execution or return of the commission upon the ground of misnomer of the witness, and there was no evidence that the opposite party had been misled as to the identity of the person whose testimony it was intended to take. Held, that the objection that under the above commission the evidence of C. H. Platt could not be taken did not go to the competency of the evidence, but was a question affecting the execution and return of the commission, and that such objection should have been filed at the time designated by the rule of Court and could not be entertained when made long afterwards at the trial of the case. In the issuing of a commission to take the deposition of non-resident witnesses, if the defendant, after notice of the commissioner proposed by the plaintiff, fails to name another, he waives his right to have two commissioners, and consents to the execution of the commission by the one named. When a stock brokér buys stocks on margin for his customer, and the contract between them is that the purchaser is to pay or receive the difference between the contract price and the market price of the stocks on some future day, and there is no intention that the stocks themselves shall be delivered and paid for, then the transaction is a gambling contract and no action can be maintained on it by the broker to recover advances made by him. But when the broker actually contracts for the purchase of the stocks from a third party, who holds the same ready for delivery upon payment of the purchase money, and the broker’s customer, knowing the facts, requests the broker to make advances by way of margins to the third party, then such advances may be recovered. In such case, however, the customer may show that the contract between the broker and the third party is a device disguising what is really a gambling contract. In this case the contract between the plaintiff, a broker, and a third party from whom he bought on margins the stocks ordered by the defendant, provided that all property sold by either party should be delivered on payment of the contract price, and that if the advance or decline in the market price of any property beyond the contract price equals or exceeds the cash credits of the other party, then the contract might be closed and terminated. This third party testified that the stocks bought for the defendant were closed out at the full market price. Held, that it was for the jury to determine whether the contracts in question for the sale of the stocks were made bona fide, or were intended to conceal a gambling transaction. In an action by a stock broker to recover advances made for defendant in the purchase of stocks on margin, the plaintiff’s evidence was that at defendant’s request he bought from other parties certain stocks and that these parties actually held the same with the understanding that they were to be delivered on payment of the contract price; that at the time of the purchase the defendant paid certain margins and agreed to pay such additional margins as might be necessary until the whole purchase money was paid ; that plaintiff paid additional margins for defendant at his request, and that upon defendant’s failure to pay for the stocks or protect the same by additional margins, the same were sold out. The defendant testified that the agreement between him and the plaintiff was for dealings in margins only and that no delivery of the certificates for the stocks was intended. Held,, that if the transactions were intended to be a dealing in the rise and fall of the market prices of the stocks, and the same were not to be delivered but the differences between the prices on the day of purchase and the prices on the day of settlement to be adjusted, then the plaintiff cannot recover, and that this question was fairly submitted to the jury by the instructions of the trial Court. The declaration in this case contained the common counts in assumpsit, and the account filed with the declaration charged the defendant with the purchase price of certain stocks less the margins paid by him and credited him with the amounts realized by their sale. Held, that although the account did not state that the balance was the amount paid by the plaintiff for the defendant at his request, yet it gave the defendant notice of the character of the claim made, and the question of variance between the pleadings and evidence could not be raised by a general prayer that under the. pleadings and evidence the plaintiff was not entitled to recover.

Appeal from the Circuit Court for Washington County. The facts appear in the opinion of the Court.- The account filed with the declaration in this case is as follows: Baltimore, Nov. 12, 1890. Mr. Samuel Cover, In account with Smith & Pride. 1890. Sept. 18. To 10 M. Pac. Stock bought at 69%.■■$ 692 50 “ “ By cash, dividend on same............... 5000 64250 “ “ To 25 M. Pac. Stock bought at 69X— 1,731 25 “ “ By cash and dividend on same.......... 125 00 1,606 25 “ “ 25 C. C. C. Stock bought at 68>á....... 1,721 87 “ “ By cash and dividend on same.......... 20000 1,52187 “ “ 50 Mo. Pac. Stock; bought at 77X ....3,86250 “ “ By cash paid on same....................... 40000 3,462 50 “ 22. 25 Mo. Pac. Stock bought at 76yz...... 1,912 50 “ “ By cash paid on same....................... 20000 1,712 50 “ 29. 25 N. Pac. Stock bought at 76X......... 1,90625 “ “ By cash paid on same....................... 175 00 1,731 25 Sept. 30. 50 N. Pac. Stock bought at 73^........ 3,675 00 “ “ By cash paid on same....................... 25000 3,42500 “ “ 50 N. Pac. Stock bought at 73%........ 3,675 00 “ “ By cash paid on same....................... 25000 3,42500 “ “ 50 N. Pac. Stock bought at 73........... 3,650 00 “ “ By cash paid on same....................... 200 bo 3,450 00 Oct. 31. To 50 N. Pac. Stock bought at 73%.... 3,662 50 “ “ By cash paid on same....................... 200 00 3,462 50 " “ To 40 Ch- Gas Stock bought at 41 1,64500 “ “ By cash and dividend on same.......... 160 00 1,485 00 Nov. 6. To 100 N. Pac. bought at 73.............. 7,300 00 “ “ By cash paid on same....................... 40000 6,90000 “ “ To 100 N. West Stock bought at 106..10,612 50 “ “ By cash paid on same....................... 200 00 10,412 50 “ “ To 100 Ch. Gas Stock bought at 42%.. 4,225 00 “ “ By cash paid on same....................... 50000 3,72500 “ “ To interest on #37,011, from Nov. 1st to Nov. 12th................................. 64 07 “ 12. To Check Ref. a protect................... 1,799 43 I>799 43 #48,825 37 CREDITS. Nov. 12. By 10 Mo. Pac. #714, sold out $ 64... 640 00 “ “ “ 25 “ “ 715, “ “ 64... 1,600 00 “ “ “ 25 C. C. C. 154, “ “ 59i 1,484 37 “ “ “ 50 Mo. Pac. 718, “ “ 56... 2,800 00 " “ “ 25 “ “ 184, “ “ 56... 1,400 00 “ “ “ 25 “ “ 200, “ “ 56... 1,400 00 “ “ “ 50 “ “ 296, “ “ 56... 2,800 on “ “ “ 50 “ “ 298, “ “ 56... 2,800 00 “ “ “ 50 “ “ 300, “ “ 56... 2,800 00 “ “ “ 50 “ “ 302, “ “ 56... 2,800 00 “ “ “ 100 “ “ 3x6, “ ‘‘ 56... 5,600 00 “ “ “ 40 Chi. Gas 306, “ “ 39... 1,560 00 “ “ “ 100 “ “ 370, “ “ 39- 3,900 00 “ “ “ 100 N. West 318, “ “ 105...10,500 00 --#42,084 37 The contract referred to in the opinion of the Court between the plaintiffs and the parties from whom they bought the above mentioned stocks for the defendant was as follows : “ Memorandum of agreement made this seventh day of July, 1890, between the New York Stock and Produce Clearing House Company, Limited, party of the first part, and Smith & Pride, party of the second part. Witnesseth .that the said Baltimore, Maryland, parties do mutually agree as follows : 1. That the following are the terms and conditions upon which all contracts between them shall be had unless others shall be agreed upon in writing. 2. That all property sold by either party to the other is to be delivered as hereinafter stated on payment of the contract price. 3. That if the advance or decline in the market price of any property beyond the contract price equals or exceeds the cash credits of the party of the second part with the party of the first part, the party of the first part shall thereafter be at liberty to close and terminate the contract as to that property ; and any credits the party of the second part may have with the party of the first part may be applied by the party of the first part to any indebtedness of the party of the second part to the party of the first part. And the party of the first part may close and terminate any or all other contracts and apply the payments or deposits and profits to the payment of any such indebtedness. 4. That the place of delivery of grain and provisions is Chicago, at such houses as the party of the first part may elect, and of all other property the office of the party of the first part in New York City. That Chicago warehouse receipts for grain and provisions and National Transit Company, Pipe Line certificates may be delivered in lieu of the property represented by them. 6. That the party of the second part has and shall have no authority to act as the agent of the party of the first party, and that he shall in no way hold himself out or represent himself to be the agent of the party of the first part. L. J. Grenlich, president. Smith & Pride.” The following prayers were offered at the trial: Plaintiff's ist Prayer. — That if the jury find from all the evidence in the case. First. That in May, 1890, Joseph S. Smith, the plaintiff, and Harvey Pride were partners, trading in the city of Baltimore, as brokers, under the style of Smith & Pride. Second. That while so trading the said Smith & Pride in good faith entered into the agreement in writing offered in evidence between Smith & Pride and the New York Stock and Produce Clearing House Company', Limited, and in good faith for the purchase, sale and delivery of stocks. Third. That the defendant had knowledge of the terms of said agreement. Fourth. That with such knowledge the defendant instructed Smith & Pride to purchase stocks for him through the said New York Stock and Produce Clearing House Company, Limited. Fifth. That the defendant subsequently ordered Smith & Pride to purchase for him the stocks described in the account filed with the declaration, and that Smith & Pride ordered the said New York Stock and Produce Clearing House Company, Limited, to purchase, and the said company in good faith did purchase and hold for delivery said stocks and at the prices charged in said account of which purchases and prices the defendant had notice and to which he assented. Sixth. That Smith & Pride made cash payments upon the contract prices for the purchase of the said stocks, and that the said company in good faith bought and held the stocks ready for delivery upon the payment of the balance of the contract price, and that defendant was notified thereof. Seventh. That said stocks from time to time declined in market value beneath the market price of their purchase, and that the defendant was notified thereof, and that from time to time the defendant requested Smith & Pride to make cash advances for him, and to lay out and expend certain moneys to protect his said stocks by keeping their market value up to the contract price of their purchase. Eighth. That Smith & Pride from time to time did make cash advances and lay out and expend money, and paid the same at the request of the defendant to the said company upon the decline in the market value of the said stocks from their contract price. Ninth. That the defendant was notified that the stocks had declined in the market value more than the amount of the payments made on their contract price. Tenth. That the defendant failed and refused after notice of the decline in the market value of the said stocks to pay the moneys necessary to keep the market value of the said stocks up to the contract price. Eleventh. That, thereupon, on the 12th of November, 1890, the said stocks were in good faith sold for their full market value at the prices set forth in said account filed with the declaration. Twelfth. The plaintiff is entitled to recover. Thirteenth. And their verdict may be for such sum as the jury may find from the evidence that Smith & Pride advanced, paid, laid out and expended at the request of the defendant, for the protection of the defendant’s stocks as aforesaid, together with the commissions of Smith & Pride as brokers, and interest may be allowed in the discretion of the jury upon such sum as the jury may find from the evidence that Smith & Pride advanced at the request of the defendant. (Granted.) Plaintiff's 2nd Prayer. — If the jury^shall find from the evidence that Joseph S. Smith and Harvey Pride in May, 1890, were partners, trading as brokers, and if the jury shall further find that while so trading they in good faith entered into an agreement in writing, offered in evidence with the New York Stock and Produce Clearing House Company, Limited, for the purchase and delivery of stocks, and shall further find that defendant had knowledge of the terms of said agreement, and shall further find the defendant requested Smith & Pride to purchase his stocks through the said New York Stock and Produce Clearing House Company, Limited, and shall further find that Smith & Pride in good faith ordered the said New York Stock and Produce Clearing House Company, Limited, to purchase the said stocks and shall further find that said New York Stock and Produce Clearing House Company, Limited, purchased the said stocks for said Smith & Pride at and for the prices named in the account filed with the declaration, and shall further find that the New York Company held the said stocks in their possession for delivery upon payment of the price of said stock, and shall further find that the said Smith & Pride made partial payment on said stocks to the said New York Company, and shall further find that the defendant from time to time requested the said Smith & Pride to advance moneys for him to protect his said stocks, and shall further find that in consequence of such request Smith & Pride deposited to the credit of the said Stock and Produce Co., any sum or sums of money for the purpose of protecting said stocks according to the terms' of the contract of purchase, and shall further find that the defendant failed and refused to put up money sufficient to keep the said stock up to the contract price, and shall find that the said stocks declined below the contract price and that said stocks were sold on November 12, 1890, at the fair market price, then the plaintiff is entitled to recover such sum as the jury may find that Smith & Pride had laid out and- expended in said contracts on behalf of the defendant, and interest may be allowed thereon in the discretion of the jury. (Rejected.) Defendants 1st Prayer. — That there is no legally sufficient evidence from which the jury can find that the stocks mentioned in the account in this suit aré the same stocks mentioned in the testimony of the witness, C. H. Platt, as having been purchased by the New York Stock, &c., Co., and that their verdict must be for the defendant. (Rejected.) Defendants 2nd Prayer. — That'if it was mutually understood between the defendant and Smith & Pride when the alleged orders to buy the stocks mentioned in the account was given by the defendant to Smith & Pride, that said transactions were in fact and were understood and intended by Smith & Pride and the defendant to be a dealing in the rise and fall of the market prices of said stocks, and that the stocks were not intended by them to be bought in fact for delivery to the defendant, and that the difference in the rise and fall of said market prices of said stocks and the profits or losses, as the .case might be, was to be settled and adjusted between said Smith 8c Pride and defendant by the payment by Smith 8c Pride to defendant of the amounts of any rise in said market prices of said stocks, and by payment by defendant to the said Smith 8c Pride of the amounts of any losses on account of any fall in said market prices, then the plaintiff cannot recover. (Granted.) Defendant's 3rd Prayer. — That there is no legally sufficient evidence in this case of that the contract was executed between Smith & Pride and the New York Stock and Produce Clearing House Company, Limited, mentioned in the evidence taken under the commission, and as stocks are by plaintiff’s witness, Platt, testified to have been bought subject to the terms of such a contract, the evidence of said Platt cannot be considered by the jury and the verdict of the jury must be for the defendant. (Rejected.) Defendant’s 4th Prayer — That there is no evidence in this case from which the jury can find that the contract between plaintiffs and the New York Co., under which the defendant ordered the stocks in suit to be purchased was the same contract under which said stocks were purchased by the New York Co., and their verdict must be for the defendant. (Rejected.) Defendant's 3th Prayer. — That there is no evidence legally sufficient from which the jury can find that the stocks in the nar. and account filed in this case were kept in the possession and control of the New York Stock and Produce Clearing House Co., Limited, from the dates of the purchase of same until November 12, 1890, and the verdict of the jury must be for the defendant. (Rejected.) Defendant's 6th Prayer. — That the plaintiffs must show by proof that the stocks in question in this case were actually purchased under the direction of Smith 8t Pride by the New York Stock and Produce Clearing House Company, Limited, at fair market prices on the several days of purchase, and that said company actually paid the purchase money therefor, and that the plaintiffs has given no such proof, and the verdict must be for defendant. (Rejected.) Defendant's ’jth Prayer. — That the plaintiffs must show by proof that the stocks in this case mentioned were actually purchased under the direction of Smith & Pride by their agent, the New York Stock and Produce Clearing House Company, Limited, at their fair market prices on the several days of purchase, and that said Smith & Pride actually paid the purchase money therefor, and that no such proof has been given, and the verdict must be for defendant. (Rejected.) Defendant's 8th Prayer. — That under the pleadings and all the evidence the plaintiff has shown by proof no right to recover, and the verdict of the jury must be for defendant. (Rejected.) Defendant's 8 1-2 Prayer. — That there is no sufficient proof that the stocks in question in this case were actually- and bona fide purchased by the New York Stock and Produce Clearing House Company, Limited, and that the purchase money therefor was actually paid, and that said stocks were taken into the possession of said company and that the verdict must be for defendant. (Rejected.) Defiendan's gth Prayer.. — That if the jury shall believe from the evidence that the usual course of business of plaintiffs was to buy stocks only on margins and to deal in the rise and fall of the market prices of stocks, and that the stocks bought were not in fact to be delivered and paid for at all, and that the dealings in this case with defendant were had and done in the same way as was the usual course of their business, then such dealings constituted gambling transactions, and the verdict ©f the jury must be for defendant. (Granted.) Defendant's 10th Prayer. — That if the jury believe from all the evidence that at the time the defendant ordered the firm of Smith & Pride to purchase for him the stocks mentioned in the account and nar. in this case it was understood between the defendant and said firm of Smith & Pride that said stocks were not intended to ■ be delivered to the defendant, then their verdict must be for the defendant. (Rejected.) Defendant's nth Prayer. — That if the juiy believe that at the time the defendant ordered the firm of Smith & Pride to purchase for him the stocks mentioned in the account and nar. in this case it was understood between the defendant and the said Smith & Pride that said stocks were not intended to be delivered to the defendant and their verdict must be for the defendant; although the jury may believe that at the times when the defendant gave the orders for said stocks he knew of the terms of the contract between the New York Stock and Produce Clearing House Company and Smith & Pride mentioned in the evidence, arid that he directed the said Smith & Pride to buy said stocks from or through said New York Company, and that said New York Co. did actually buy and take into their possession said stocks and held the same for delivery to Smith & Pride under the terms of said contract, and that the said Smith & Pride made advances of money on account of said stocks to said New York Company, at the request of the defendant, and that said stocks were sold out by said Smith & Pride or said New York Company upon failure of the defendant to keep up the market prices thereof. (Rejected.) Defendant's 12th Prayer. — That plaintiff has given no legally sufficient evidence tending to prove the alleged sale of the stocks in question in this case on the 12th of November, 1890, and loss sustained at or by said said sale entitling him to a verdict for any sum or sums of money in this case. (Rejected.) Defendant’s 13th Prayer. — That if the jury believe from the evidence that when the defendant gave to Smith & Pride the several orders for the purchase of stocks mentioned in the account in this case, it was mutually understood between Smith & Pride and the defendant that there was to be no actual delivery to the defendant of the stocks ordered to be bought; but that all of said transactions in stock were to be settled and adjusted by the payment or receipt, as the case might be, by the defendant, of the differences between the prices at which said stocks should be bought and at which they should be sold, then the plaintiff is not entitled to recover, even though the jury shall further find that said Smith & Pride did actually purchase said stocks, through their agents in New York, and offered to deliver the same to the defendant. (Granted). Defendant's 14th Prayer. — That there can be no verdict for the plaintiffs unless the jury shall believe from the evidence the New York Stock and Produce Clearing House Company, Limited, actually bought for Smith & Pride on account of defendant the stocks in plaintiff’s account mentioned at the dates in said account mentioned, and paid the purchase money therefor, and took the same into their possession for and on account of said plaintiffs for defendant’s account, and during the whole period, from the time of said purchase up to the 12th day of November, retained possession of same, and had during all said time the same ready to deliver to plaintiffs for defendant upon payment by defendant only of balance of purchase money after crediting the amount of margins received by said New York Company, interest from November 1st and commissions. (Rejected). Defendant’s 15th Prayer. — That if jury shall believe from the evidence that the New York Company, mentioned in evidence, actually bought the stocks in plaintiff’s account mentioned at dates therein named on plaintiff’s account for defendant, and held the same in their possession from said dates until November 12, 1890, but did not intend to deliver the same unless interest on the purchase price of said stocks, less margins already paid, was paid on same from the dates of said purchase until said delivery, then the verdict of jury must be for defendant. (Rejected). Defendant's 16th Prayer. — That if the jury shall believe from all the evidence that the New York and Produce Clearing House Company, Limited, did actually buy the stocks in the plaintiffs’ nar. and accounts filed therewith at the several dates therein mentioned, and did actually pay the purchase money therefor and entered the orders for said stocks on its books at said dates, but did not deliver or offer to deliver the same, and held itself ready to buy in New York other like stocks in case an actual delivery of said stocks were called for by said Smith & Pride, provided the purchase price for same was first paid to said New York Company or deposited in bank to its credit by said Smith & Pride before said stocks were actually bought, the verdict must be for the defendant. (Granted.) Defendant's ijth Prayer. — That there can be no verdict for plaintiff in this case unless the jury shall believe from the evidence that the New York Stock and Produce Clearing House Company, Limited, actually bought for Smith & Pride on account of the defendant the stocks in plaintiffs’ account mentioned at the dates in said account set out and took the same into their possession for and on account of said plaintiffs for defendant’s account and during the whole period from the time of said purchases up to the 12th of November, 1890, retained possession, of same and had during all said time the same ready to deliver to plaintiffs for defendant upon payment by defendant only of the balance of purchase money, interest from November 1st and commissions. (Granted.) Defendant's 18th Prayer. — That unless the jury believe from the evidenee that the stocks mentioned in this case were actually purchased by the New York and Produce Clearing House Company and were in the possession of said New York Company from the dates of purchase of the same to the 12th of November, 1890, and ready to be delivered to Smith & Pride for the defendant upon the said Smith & Pride complying with terms of said contract to the said New York Company, their verdict must be for defendant. (Granted.) Defendant’s igth Prayer. — If the jury find from the evidence that the entire capital of said Smith & Pride was ‘ $21,000, and that at the time of the transactions in this case, given in evidence, they were carrying on dealings in the purchase of stocks to an amount exceeding $300,000, said facts may be considered by the jury as tending to prove that the transactions in this case were not for the actual and bona fide purchase of the stocks in question. (Granted.) Defendant’s 20th Prayer. — That the burden of proof is on the plaintiff to prove that the purchases of the stocks in question in this case were actually and bona fide made for the purpose and with the intention of delivering of said stocks by the sellers thereof to the purchasers, and, no such proof having been given, the verdict must be for defendant. (Rejected.) Defendant’s 21st Prayer. — That if the jury shall believe from all the evidence that the usual course and custom of plaintiff’s business was to deal only in margins and upon rise and fall in the market prices of stocks, and with no intention to deliver any stocks ; and shall further find that the transactions of plaintiffs had with defendant were, of the same kind as he usually had in his business, then such transactions constitute gambling transactions in law, and if the jury find that plaintiffs paid the New York Stock and Produce Clearing House Company, Limited, any money for and on account of transactions had by plaintiffs in the said New York House for and on account of defendant, and that such payments were made in pursuance of requests made by defendant to plaintiffs in course of such transactions to keep up and protect defendant’s stocks, then the verdict of jury must be for defendant. (Granted.) Defendant’s 22nd Prayer. — That if the jury shall believe from the evidence the contract of purchase between plaintiffs and defendant was that stocks should be bought by plaintiffs for defendant only on margins, and only the difference between the rise and fall of the market values of said stocks should be dealt in, and that stocks were not to be delivered under the agreement between plaintiffs and defendant, then the verdict of the jury must be for defendant, even though the jury shall believe from the evidence that said stocks were ordered to be bought by defendant, with knowledge of the contract of July 5, 1890, with the New York House, and that said stocks were purchased by said New York Company, and adyances were made by plaintiffs as tes tified to. (Granted.) Defendant's 23rd Prayer. — That if the jury shall believe from the evidence that the usual and customary way of plaintiffs’ carrying" on business was to deal only in margins and upon the rise and fall in the market prices of stocks, and with an understanding with his customers that no stocks were in fact to be delivered, and that plaintiffs’ dealings with defendant were done in the way that he usually dealt with his customers, then the verdict of the jury must be for defendant, even though the jury should believe from all the evidence that plaintiffs likewise showed to defendant the contract of July 5, 1890, with the New York Stock and Produce Clearing House Company, Limited, and told him he executed orders through said House and under said contract; and even though the jury should further believe that defendant requested Smith & Pride to buy through said House, and even though the jury should further believe that plaintiffs paid money on account of the said stocks in evidence mentioned, to the New York House in consequence of a fall in stocks carried by said New York House for plaintiffs on account of defendant, and even though the jury shall further believe that defendant requested plaintiffs to protect his stocks. (Rejected.) Defendants 24th Prayer. — If the jury find from the evidence that at the time of the alleged showing to defendant of the contract of the 5 th of July, given in evidence, said Smith & Pride, or said Smith told to defendant that said New York Stock and Produce Clearing House Company, Limited, had a capital of $100,000, fully paid up, and was reliable and good, and that at said time said Smith or Smith & Pride had no knowledge in respect to either the alleged 'capital of said company or of the reliability thereof, and that they or either of them applied to the Commercial Agency of Dunn & Co. for information in respect to the financial standing and reliability of said New York Company, and in reply were told that said Dunn & Co. had no knowledge or information on the subject, but would inquire and they or either of them afterwards applied to said Dunn & Co. for the information promised in reply to said inquiry, and that the defendant was induced by the said representations to give the orders in evidence. The said facts taken in connection with the proof given by the witnesses Burknett and McClave; if the jury believe the same was competent evidence tending to prove that the said alleged contract of the 5th' of July was a device for the purpose of disguising an illegal or gambling contract. (Rejected.) The Court below (Stake, J.), granted the plaintiffs first prayer and rejected his second. And granted the defendant’s 2nd, 9th, 13th, 16th, 17th, 18th, 19th, 21st and 22nd prayers and rejected all the other prayers of the defendant. The jury returned a verdict for the plaintiff for $8,129.65, and from the judgment thereon the defendant appealed. This suit was brought under the Act of 1890, ch. 136, and with the declaration was filed the account as the cause of action as required by sec. 16 of the Act. The case made out by the proof is totally different from that presented by the pleadings. The plaintiff states that the defendant ordered Smith & Pride, brokers, to buy for him, through the N. Y. Company, the stocks mentioned in the account filed with the declaration; that when Smith & Pride received the orders to buy said stocks they telégraphed over to New York to the N. Y. Company and bought said stocks for the defendant; that the defendant was to put up or pay to Smith & Pride margins on said stocks, to keep the stocks up to contract prices; that the defendant requested Smith & Pride to protect his stocks; that Smith & Pride did protect said stocks until they were sold out on November 12th, 1890, because Cover failed to pay margins to keep up the contract price of said stocks, and that the $6,741.00 sued for is money paid by Smith & Pride to the New York Company, at the request of the defendant, to protect said stocky and to keep up the contract price. Here is a fatal variance. 1 Poe P. & P., p. 612-17. Taking the case upon the plaintiff’s proof, the contract between Smith & Pride and the defendant was simply a method of carrying out a gambling arrangement. Plaintiff says : “ That according to the understanding between Smith & Pride and the defendant, at the time when the several stocks in this case were ordered to be bought, the defendant was to put up a certain amount to keep the stocks up to the contract price; that he was first to put up one per cent., called margin, to keep the stocks up to the contract price, to protect the plaintiff from loss.” In case the market price of the stocks advanced above the market price 'of the stocks on the day they were ordered to be bought, and the defendant ordered them sold out, the plaintiffs were to pay the defendant the difference between the price at which they were purchased and the price he sold them out at, less plaintiff’s commissions of one-fourth per cent., and in addition, in cases where he sold out at a profit, defendant would get back any margin he may have put up. In case the stocks declined in the market price, and they were sold out, “ defendant would get the difference between the price which they were down to, up to the price they were sold out at;” “that commissions for both buying and selling was one-fourth per cent., one-eighth for buying and one-eighth for selling, and that he, witness, added this commission to the purchase price of the stocks at the time they were purchased, and included the same in the account handed to the defendant, as was done with his other customers, on a paper similar to paper marked ‘ S. & P.’ ” “ That the price wired from New York was the actual purchase price of the stock, and that the commissions of one-fourth per cent, was added when he sent to customers tickets fac simile of ‘ S. &P.’” This contract between Smith & Pride and the N. Y. Company, which was evidently intended as a cloak for gambling transactions, notwithstanding Mr. Platt says that it was intended as a. trap for dishonest men, is confidently relied upon by counsel for plaintiff to extricate them from the dilemma in which plaintiff’s proof has placed them. Yet, when read in connection with the plaintiffs statement as to the understanding between Smith & Pride and defendant, and his explanation of the purpose of the margins, and the statement of witness, Platt, as to the right to sell if stocks declined, the 3d paragraph of said contract, in regard to the sale of the stock, in case the advance or decline of the market price, beyond the contract price, exceeded or equaled the cash credits, &c., presents exactly the same proof passed on in Billingslea v. Smith & Pride, page 519, where the Court says, “ if the margin was such as stated in defendant’s testimony, this agreement was simply a method of carrying out a gambling engagement. If the margin was such as described by Smith, the result would not be different if we take into consideration the remaining portion of the prayer, about selling the stock when it declined below the contract price.” • Supposing the contract between the plaintiffs and defendant to be that the plaintiffs should purchase the stocks for the defendant without any qualification, then the plaintiffs, to entitle them to recover, must show that the stocks were actually purchased under their direction by their New York agents at their fair market price, on the day of purchase; that they or their New York agents had said stocks in their possession so that they could be delivered to the defendant upon his paying the purchase money therefor; that they notified the defendant of the purchase, and requested him to receive the stock and pay them the price they had paid for it, with their commissions ; that, at the time of this notice, they were in condition to deliver the stock by having the stock or other indicia of title actually in hand or in the hands of their agents ; that, on the failure of the defendant to receive the stock, they, after notice to the defendant, directed it to be sold; and that it was sold by their agents, either at public sale in market overt, or at a. sale publicly and fairly made at the Stock Exchange, or a Stock Board, or a Board of Brokers, where such stocks are usually sold, at a fair market value on the day of sale. Rosenstock v. Tormey, 32 Md. 169; Worthington v. Tormey, 34 Md. 182; Price and wife v. Gover et al., 40 Md. 102; Billingslea v. Smith & Pride, 77 Md. 518. The only proof offered as to the purchase of these stocks was the evidence of Charles H. Platt, taken under the commission. In answer to the twelfth interrogatory, “Are you able to state what transactions you had with plaintiffs in the fall of 1890, dating from the 18th day of Sept, to the 12th day of Nov., 1890? said witness, after refreshing his recollection from the books of the company, gives a statement of the transactions with the plaintiffs between said dates. He does not say that these were the same stocks ordered to be bought for the defendant, and could not say so, for the defendant was not known to him or his company, in the transactions between his company and the plaintiffs. Whether the stocks mentioned by the witness as having been bought by his company for the plaintiffs, are the same stocks ordered to be bought by the defendant, or even the same that are charged in the account filed with the declaration, remains, so far as the record in this case discloses, a matter of conjecture. Especially is this so when said witness gives, in answer to a similar interrogatory in the case of said plaintiffs against Billingslea, a list of transactions between his company and the same plaintiffs, covering a portion of the same period. If the list which said witness gives contains, as he says, all the transactions between his company and the plaintiffs, between Sept. 18th and Nov. 12th, 1890, then there was certainly not enough stocks bought by his company for the plaintiffs to fill the orders of both Billingslea and Cover, independent of the numerous other customers of the plaintiffs, whose orders were filled, according to the proof of the plaintiff, during the same period, by said N. Y. Company. Were these stocks purchased and held by the N. Y. Company, for delivery to the defendant, upon his paying the purchase price of said stocks? Witness Platt says, that after holding them for several days, his company gave notice to the plaintiffs, by letter, that all said stocks were ready for delivery to them, &c.” The only notice received by the defendant, according to the plaintiffs’ proof, was the letter from the N. Y. Company, dated Oct. 27th, to the plaintiffs. If the stocks had only been held by the N, Y. Company for several days before said notice, then all of Cover’s stocks were certainly not purchased on the day they were ordered to be purchased or were reported to have been purchased, for most of them were ordered and reported to have béen purchased more than a month previous to said notice. Again, said witness Platt states that these stocks were purchased and held by his company ’ for plaintiffs, under the terms of said contract. If they were so held, they were not held for delivery to the defendant, and to be delivered to him upon his paying the balance due thereon, for, by the terms of said contract, they were held liable to be sold by said company at any time, to meet any shortage of the plaintiffs on account of any other stocks held by said company for the plaintiffs. Where in the record do you find any proof that said stocks, to usé the language of Judge Miller in Rosenstock v. Tormey, “ were actually sold by said N. Y. Company, either at public sale in market overt, or at a sale publicly and fairly made at the Stock Exchange or Stock Board, or a Broker’s Board, where such stocks are usually sold at their fair market value ? ” Platt does not state where they were sold, but merely that they were sold at the regular Stock Board price. Therefore, the defendant’s first, fifth, eighth and twelfth prayers should have been granted. The Court will find, with scarcely a material variance, that these forty-nine exceptions and twenty-nine prayers represent questions which this Court has substantially determined in a former controversy between this appellee and one Billingslea, 77 Md. 504. The difference between the name of the appellant in this cause and that of the appellant in Billingslea v. Smith & Pride, presents the substance of the dissimilarity between the two causes. In Billingslea v. Smith & Pride, bottom of page 513, this Court paid scarcely more than the cold tribute of passing glance at the “ thirty-one exceptions taken to the evidence, and dismissed all of them (except one as to the commission), saying at the conclusion, bottom of page 516, “ It is sufficient to say that we see no error in the other rulings in the evidence,” that is, those against which the thirty-one exceptions were levelled. In support of plaintiffs’ prayer, which was granted, we rely upon Rosenstock v. Tormey, 32 Md. 169; Worthington v. Tormey, 34 Md. 183; Price v. Gover, 40 Md. 102; Appleman v. Fisher, 34 Md. 540; Dos Passos on Stock Brokers, 415 and 419; Bigelow v. Benedict, 70 N. Y. 202; Ward v. Vosburg, 31 Fed. Rep. 12; Cooke on Stock and Stockholders, note to sec. 3412. The real issue was not whether the appellant was speculating in stocks, but, if with a general knowledge of this fact, the appellees had so far participated as to make them sort of accessories before the fact, and so accessorial to his guilt as to visit upon themselves the disability which the law attached to the crime. This prayer, instead of making the guilty knowledge of the appellees a barrier to their recovery, made even “ good faith and bona fides ” in the actual purchase of the stock, another and insuperable obstacle to their right of recovery. The appellee voluntarily assumed this burthen, which the law did not attach to him — but not only was bona fides to be observed, but it required the jury to find the actual possession of the stock to have been in their possession and ready for delivery and its tender upon payment of the contract price. The proof was that the offer was to deliver the stock to any party in New York whom the appellant would name and the actual cash deposit of the amount of the decline by the appellee. If his original undertaking was for gambling in stocks, the purchase of the stock and its tender was wholly inconsistent and irreconcilable with any such fraudulent device, and defeated eo instanter the contemplated fraud. For if the stock was actually purchased, held and ready for delivery, how could the plaintiff have intended to settle at the price for which it was bought and sold ? Gambling contemplated neither purchase nor delivery. The purchase and delivery precluded the possibility of a mutual intent to wager and settle in money. The purchase defeated the mutuality of the conspiracy, if such there was, and thus the appellant was immeasurably benefited by the Court granting his prayers. A transaction which on its face is legitimate cannot be held void as a wagering contract by showing that one party only so understood and meant it to be. The proof must go further and show that this understanding was mutual. Bibb v. Allen, 149 U. S. 481. If the dealings are under a contract or option to buy or sell at a future day, they are gambling transactions and illegal, but if they are contracts for absolute delivery of the grain, they are valid. White v. Barber, 123 U. S. 392. The contract which the law condemns is wherein the parties stipulate that they shall gain or lose upon the happening of an uncertain event in which they have no interest except that arising from the possibility of such gain or loss. When a broker is privy to the unlawful designs of the parties and brings them together for the purpose of entering into an illegal agreement, he is particeps criminis and cannot recover for services rendered. Embrey v. Jamison, 131 U. S. 336.