Page:Federal Reporter, 1st Series, Volume 5.djvu/597

 WANN V. KELLY. 585 �Gilman e Clough, for plaintiff. �W. P. Warner, for defendant. �Nelson, D. J-. This action is brought by the plaintiff, Wann, against defendant, Kelly, to recover money paid to the latter for the plaintiff's use. The facts developed are these : The plaintiff and defendant and E. B. Gibbs agreed to engage in a speculation by the sale and purchase, or purchase and sale, — ^it is immaterial which, — of 300 shares of North- ern Pacific Eailroad stock on tbeir joint account, each to be interested to the extent of 100 shares. The transaction was determined upon and agreed to by the parties in the belief that the stock would depreciate in the market, and by "sell- ing short" they would be able in the future to purchase so as to make a profit upon the whole transaction, called by stoçk- jobbers "the deal." �The plaintiff alleges it was agreed that Kelly should nian- age the speculation, and through his broker in New York sell 300 shares Northern Pacific Eailroad stock, which was done November 8 and 11, 1879, and afterwards, when a deprecia- tion in the price of the stock reached two points, or two dol- lars per share, he should order the broker to purchase 300 shares of the stock, and thus close the venture, and pay over to each his proportion of the profits. �The evidence shows very clearly that the arrangement contemplated, in fact, no contract of actual sale or purchase ; but, on the contrary, the intention and design was that, as between themselves and the party with whom they dealt, ail differences in the price of the stock, at the time of the sup- posed contracts, should be paid by one party to the other as performance and satisfaction thereof. There were no actual bargains for the sale of the actual stock, but mere bets or wagers on the future price, — gambling transactions on the chance of future rise or fall. Kelly claims the "deal" closed November 19, 1879, when there was a depreciation of two or more points, showing a profit of $647, and that he has paid the plaintiff his portion, one-third of that amount. Wann admits the receipt of $215.66, but claims that the "deal" was ����