Page:Federal Reporter, 1st Series, Volume 10.djvu/261

 THIBD NAT. BANK V. HARBISON. 249 �favored,) thafc it woukl be a mere repetition of what bas been thus so ably done, to attempt to travel over the satne ground, and hence I quote laigely from his opinion as follows: �" The law is now well settled, in all of the states where the question haa jiriseu, that there can be no i-eoovery had upon a oontract or sale of personalty where the parties to such contract do not intend an actual delivery of the articles bargained for, but uierely intend to settle differences at some future day between the price agreed to be paid for the commodity and the then market priee. Such contracts are universally held to be invalid, as against pub- lic policy, and in some instances they have been held to be in violation of stat- utes relative to gaming and wagers. Lyon v. Culbertson, 83 111. 33; Samp- ■son v. Shaw, 101 Mass. 145; KirkpatricJc v. Bonsall, 72 Pa. 155; Gregory v. Wendelll, 39 Mich. 337 ; Rumsey v. Be^ry, 65 Me. 570 ; Williams v. Tiedemann, 6 Mo. App. 269. But there is an apparent conflict of opinion touching the ques- tion whether a broker, factor, or commission merchant, who has been em- ]>loyed by his principal to make contracts of this character vyith some third party, and has done so in his own name, but for his principal's beneflt, may maintain an action against his principal to recover money expended for his principal at his principal's request in the settlement of losses accruing under .such contracts. ihis precise question was considered in the Case of Green, 15 X. B. E. 201, (U. S. Dist. Court, W. D. Wis.,) and it was there held that the broker could not recover from his principal for moneya thus expended in the settlement of losses on such illegal ventures. But it is to be observed that the court, in the case last cited, based its decision mainly on a statute of Wiscon- sin, which declared all 'notes and agreeinents void that had been giveu for repaying any money knowingly advanced for any betting and gaming at the time of such betting or gaming.' And the evidence in the case cited showed that the broker not only made the illegal contracts in question, but that he advanced the money for the venture. The court accordingly held that the case foll within the statute, and that the broker could not recover money thus knowingly advanced in furtherance of a gambling transaction. �" iliere are other cases, arising between factors and brokers and their princi- pals, which the courts have apparently treated as though the action was between the prinoipals to the illegal transaction. But the different relation existing between the agent and his principal, in actions by the former to reeover moiieys expended for his principal in the settlement of losses on wager contracts, was apparently not called to the attention of the court. Vide Greg- ory V. Wendell, supra; Williams v. Tiedemann, supra. �" On the other hand, the law is well settled in England that if a broker be employed to make wager contracts, such as are voidable under 8 & 9 Vict. c. 109, § 18, and at the request of his principal the broker pays the amount due under such contract, he can recover the amount so paid from his principal, and the illegal nature of the contract with reference to which the money is paid is no defence to an action founded on such claim. Warren v. Billings, 33 Law Jour. (1864,) 55, K. S. Common Law, Michaelmas term, 1863; Pidgeon V. Burslem, 3 Exch. 465 ; Jessopp v. Surtoryotie, 10 Exch. 614. ��� �