Page:Federal Reporter, 1st Series, Volume 5.djvu/598

 686 FEDERAL REPORTER. �not closed until November 22, 1879, wLen Kelly actually realized and received a profit of $2,000, and that lie is enti- tled to one-third of this amount, which Eellyjeceived for him. The broker in New York did not elose up the speculation untii November 22d, as appears by bis statement rendered Keliy, for wbom he acted, and the only person known to bim in the business, at which time the profit realized was the sum before stated. Kelly further claims that be was authorized by bis arrangement, whieh was agreed to by Gibbs and plaintiff, to carry the "deal" on bis own acoount, if he desired to, after a decline of two points, by paying each of them the profits result- ing from sucb decline, and could close them ont in that way. This is not the arrangement disclosed by the evidence. It was not possible to close up the transaction with Wann ^.nd Gibbs, unless by their consent, until he notified the New York broker to close the "deal, " and that he would take the profit which resulted from the speculation at the time, whether the decline was two or more points,' As the broker did not close the "deal" until November 22,:1879, if the plaintiff is entitled to reeo\^ anything, it will be upon the basis of the profit paid Kelly then. The testimony of Kelly shows that the three parties were interested to the extent of one-third each in the venture, and the statement rendered Wann purports to be based upon the close of the "deal" by the New York broker, November 19th. Kelly thought he could carry the specula- tion foi- bis own benefit, and at his own risk,. after a profit of two points was.reached, but the arrangement, as testified to by ail the parties to it, would not permit him to do so. �It is. urged by Kc]ly that the business in which the parties engaged was contrary to public policy and illegal, and there- fore be can retain ail the, profit which resulted therefrom without recognizing his associates jointly interested, and that a court will not enforce the plaintili's claim. Bueh is not the law. The agreement between the parties related to a single transaction, and when the business closed, and KeUy received the profits, he was in duty bound to pay over to the plaintiff his part of it. ����