CO129-385 - Public Offices - 1911 — Page 242

But in order that a transaction may fall under the Gaming Act both parties must contemplate differences merely. I have no doubt defendant, when he bonght, did.

be swears, intend to sell before the special settlement; but did the other party to the contract intend this? If Cooper is to be regarded as the other party, I have no doubt he intended nothing of the kiud, but to plant these shares on someone or other through Watt and make Watt responsible for the price. as he did. It Watt be regarded as the other principal, the question arises, did Watt think it practically certain that Deco could not take up the shares at due date? If he did, the Gaming Act applies and the contract is voidable. For example, if ander the Shangbai practice a broker makes Anch

tract as this, under which over $1,000 bas to be found in a few weeks to pay for shares on which the banks will bot advares, with a young clerk una azlary of $100-$300 a month, the broker knows or must be taken to know that the clerk is gambling on differences and such a contract might therefore be voidable. But defendant is this case was a man of middle age in a secure position receiving a salary of $600 a month; and I am not satis- fied on the evidence that Watt ought to be beld to have known that Dunn could not somehow pay for these shares at du date, The defence of the Gaming Act therefore fails.

But defendant further pleads that this was not a contract of brokerage at all. Now if I look at the acts of the plaintiff in the light of the above- stated practice I find that be treats the contract as one between himself and Duun. Cooper, who, he alleges, was the o.ber principal, he never brought into relations with Dunn but paid himself. Moller, with whom Daun bad nothing to do and who declined to have any- thing to do with Dunn, he represented as the other principal. If that is the form the contract took, Dunn is not liable because Watt was principal and the contract is not one of brokerage at all. And even if Cooper is to be regarded as the other principal the contract is voidable, because Watt took brokerage from both Cooper and Duan witbont Dann's knowledge. Watt put himself in the morally unfortunate predicament of having to use bis skill, knowledge and industry at the same time to buy as cheaply as possible for Dunn and to sell es dearly as possible for Cooper. The law has no pity for such moral un- fortunates. Cf. Story on Agencya § 31 and Jadgement of H. H. Judge Thayer of the U.S. Court for China in Shekury v. Brooks, "N. C. Herald," December 23, 1910, at p. 738.

There must be judgement for Defen- dant, but without costs, for his defence has no merits.

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