bought-note himself. (2) Although in these contracts be purported to be deal- ing as a broker, he did not disclose the name of the other principal, but beld himself liable under the contract. And (3) be could, if he chose, buy himself or eell his own shares under the broking contraet form, although he signed this, "For the concerned-Broker." (Toeg v. Graham Oct. 1900, Liu v. Graham July 1903 Marshall v. Nazer Jane 1909) Now these facts of (1) double con- tracts, (2) nen-disclosure of principal, and (3) 1.bbing under the contract of brokerage enable one to construct the broker's siste (f mind when he made a forward contract. In the case of a purobase by his principal he could either make a contra-contract of sale by a third party, the other principal, identical in prica, or he could sell to his principal bis own shares in band or bought forward or to be bought for- ward; aud in the case of a sale by his principal, he could make x contra- entrect or buy himself. There was mbing necessarily to link any parti- cular boying with any parti ular selling forward contract except a similar das and price c.g. on a buying and a sell- ing forward contract the same day for 200 Anglo Javas at 45, there is no reason why the former should not really have been the broker's contra for a sale by him at 46 the previous day, or why the latter should not have been reserved against a buying contract he hoped to make the next day at 44. Ir feet the broker was not only
j thing but following a course of business which made it impossible to distinguish for certain his broking from his jobbing transactions Cf evidence of F. L. Mar- shall in Marshall v. Nazer, “ N.C. Herald," Jane 12, 1909 at p. 642. This form of contract and course of business had ben condemmed over and over again by this Court as I gel, unduly favouring epitaliste and bbers at the expense ob.na fide bickers and of the speculat ing public-see judgement in Lin *. Gebom, "N C. Herald," July 1903, at p.140: dont was thereby thrown on every forward contract : izdeed it might pa contended that no contract madé ín this manner could be binding because the* broker might make a profit beyond his commission--whether in fact he did so
o not-and the contract is therefore not a contract of br kerage at all. (Johnson v. Karlov 1908 A. 0. fer Fletcher Moulton L. J. at p.530).
Defendant pleads the Gaming Act, becans, be says, the contract was mere- ly a gamble on differences. ln reply to that the Plaintiff raises the principle of Thacker v. Hardy (4 Q B.D. p.685) Damely, that a broker in such a case is entitled to indemnity from his principal, for there was nothing in the nature of gaming in the contract of employment of the bucker by the privicipal. If the intention of both Watt and Dann had been to gamble on d rences merely, it is by no means certain that Thacker v. Hardy would help the Plaintiff, lock- ing to the course of business noder these Shanghai forward share contracta stated above, for the prizeipal of Thacker v. Hardy is to indemnify the broker for the liabilities be bas properly incurred in strie ly carrying out the instructions of his principal within the authority given by him: those in- structions were to buy as broker, and sem ill carried out by a contract and course of dealing which admit of the broker, if he chose, not buying as broker' but selling as principal.
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