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Skiff v. Stoddard.

of which is, that a pledgee may not sell the thing in pledge except upon a judicial sale, or upon giving notice to the pledgeor of the time and place of sale. It seems to me that the argument should have been turned around. Instead of holding that the rule of law relating to pledges was a sufficient reason for excluding evidence of a custom, the existence of the custom should have been regarded as a convincing reason why the transaction should not have been called a pledge. The argument is vastly stronger in that direction than in the other. This case however is not complicated with any question of evidence. The fact as to the existence of such a custom, and the further fact that it was followed by the supposed pledgees, are in the case, and they should have had their legitimate effect in completely destroying the pledge theory.

My view of the case is, that while Markham v. Jaudon and the cases which follow it, and also some text writers, may be authorities for holding that a broker purchasing stock, and the customer who ordered it, may sustain to each other the relation of pledgee and pledgeor, yet that it is so inconsistent with sound principle, and if followed to its logical results might be so disastrous in its consequences that it ought not to be followed, even to that extent. But, if followed to that extent, we ought to follow the principal case in the real point decided, that a sale or a sub-pledge is a conversion of the thing pledged, which destroys the pledge, so that the pledgeor's remedy is not a redemption but an action for damages.

But these authorities are not in point for any one of the following propositions :

1. That these plaintiffs, or any one of them, are pledgeors to Prince & Whitely or W. S. Lawson & Co.

2. That a pledge to a broker who purchased the stock to secure him for advances made for the purchase, attaches to any property subsequently purchased.

3. That such a pledge attaches to any property purchased for the customer by other brokers.

4. That where there are several customers dealing with the same broker, buying the same kind of stock, and at the time of the failure he had not sufficient stock to answer the

Skiff v. Stoddard.

demands of all the customers, the customers have a joint pledge or a pledge as tenants in common on whatever stock remains.

5. That when the identity of the stock cannot be traced, still, if it can be shown that the broker actually received its value in money, the pledgeor may redeem the money by paying the charges against it, and take the balance.

6. That where money, stocks or other property have been consumed, destroyed, or so mingled with other property of the same kind as to be incapable of identification or recognition, still they are capable of sustaining a pledge.

It seems to me that the decision virtually affirms the soundness of all or most of these propositions. While, on the other hand, if the contract is simply construed according to its plain terms, and the manifest intention of the parties, as gathered from the custom of brokers and the acts of the parties, no such inferences are possible. When a contract is general in its terms, and somewhat indefinite as to its purpose, what the parties actually did under it, if not inconsistent with its terms, affords the most satisfactory indication of their real intention. If we apply that test we can have no doubt as to the real nature of the transaction. Bunnell & Scranton agreed to purchase on Skiff's account and risk 500 shares of the stock of the Western Union Telegraph Company, and Skiff agreed to furnish them with ten per cent of the par value of the stock. The brokers agreed to hold the stock at the pleasure of Skiff, provided Skiff paid the interest on their advances and their commissions, and also kept the margin good. Skiff promised to pay interest and commissions and to keep the margin good, and, if he failed to do so, he agreed that the brokers might sell the stock and thus protect themselves from loss. The brokers also agreed to sell the stock when directed by Skiff, or deliver to him the certificates upon his paying the balance of the purchase price with interest and commissions.

These agreements were performed on both sides, except that the brokers did not hold the stock, but disposed of it, intending to replace it with other stock of the same kind so

Skiff v. Stoddard.

as to be able to sell or deliver it when requested. That was regarded as a substantial compliance with the terms of the agreement. Thus matters stood at the time of the failure. This interpretation meets fully all the requirements of the contract and the demands of the situation, and effectuates the real intention of the parties. That intention clearly was, not to buy stocks, but to speculate. Speculators should receive their just legal rights, and nothing more; especially should they receive no favors at the expense of innocent third parties.

One illustration more. Suppose that Bunnell & Scranton and Skiff, at the commencement of their dealings, had agreed that Skiff should be the owner of all the stock purchased, either by Bunnell & Scranton or by other brokers upon their order and that that stock should be regarded as pledged to the broker purchasing it to secure his advances; that the pledge should follow that stock into whosesoever hands it should go so long as it could be traced; that if that stock should be disposed of and other stock of the same kind acquired in its place, the pledge should be deemed to be transferred to the newly acquired stock; that if at any time the stock held by the broker should be insufficient to meet the demands of all the customers, it should be deemed that there was a joint pledge by all, covering the stock held by the broker, and that each might redeem a proportional part of it; and in short, if the stock could not be traced, and the proceeds could, that the pledge, with a corresponding right of redemption, should be deemed to attach to the proceeds. Is this court prepared to sanction and enforce such a contract?

Objectionable as such an express contract would be, it is still more objectionable to impute such a contract to the parties by construction, and then enforce it.

In the case of Mrs. Trowbridge I agree with the majority. The view I have taken of this case does not require that the case of Ingraham v. Taylor, 58 Conn., 503, should be Overruled. I think that case interpreted the contract as it was understood by the parties. If in that respect this decision had followed that case, the two cases would not have been inconsistent.

State v. Flint.

THE STATE vs. HARRY J. FLINT.

New Haven & Fairfield Cos., June T., 1893. ANDREWS, C. J., CARPENTER, TORRANCE, FENN and BALDWIN, Js.

The common council of a city, under a statute authorizing it to make ordinances to suppress and punish all kinds of gambling, passed an ordinance imposing a penalty for keeping a place for the purpose of carrying on in it, or of allowing any other persons to carry on, the game of policy or for taking part in any such game. It is provided by Gen. Statutes, § 2559, that "every person who shall keep a place resorted to for the purpose of gaming or which is reputed to be a gaming house or place frequented for the purpose of gaming, or who shall engage in playing at any game for a valuable thing, or shall frequent such place for such purpose, shall be fined etc. A complaint under the city ordinance charged the defendant with "keeping a place for the playing or carrying on in it of the game of policy." Held that the offense here charged was not covered by the statute.

The offense charged would be complete if a place was kept for the purpose of gaming, even if never resorted to. Under the statute it must have been, or have had the reputation of being, actually resorted to for the purpose.

A judgment upon a complaint for the offense charged would not have been a bar to a proceeding under the statute unless the acts charged in both proceedings were the same. If they were the same it would be. Policy-playing is gaming under the statute.

[Argued June 6th,-decided July 6th, 1893.]

COMPLAINT, originally preferred to the City Court of the city of Bridgeport by the prosecuting attorney charging the defendant with keeping "a place for the playing in and conducting and carrying on the game, business and scheme commonly known as policy, contrary to the ordinance of said city, against the peace and contrary to the form of the statute in such cases provided."

The defendant interposed a demurrer, which was overruled, and sentence was passed against him. An appeal was taken to the Criminal Court of Common Pleas, (Walsh, J.,) where a similar demurrer was filed and overruled, and, no answer being put in, the defendant was found guilty, and a fine imposed. From this judgment the defendant appealed.

State v. Flint.

S. Judson, Jr., for the appellant.

J. Chamberlain and W. B. Grover, for the State.

BALDWIN, J. By section 2573 of the General Statutes "the Court of Common Council of any city" has "power to make, alter and repeal ordinances or by-laws to suppress and punish all kinds of gambling and gaming, pool-selling, policyplaying, lottery-dealing, bucket-shop business, and the staking or deposit of money or collaterals for the same on margins or otherwise, against a rise or fall in the markets of the price of stocks, bonds or merchandise, and to prevent idlers and persons without apparent employment from enticing persons into places where gambling of any kind is carried on."

After this enactment the Court of Common Council of the city of Bridgeport made the following ordinance :

"Every person, whether as principal, agent or servant, who shall manage, or have any interest in the keeping or managing of, any place or shop for the purpose in whole or in part of playing, conducting or carrying on, or of allowing any other person or persons to play, conduct or carry on, the game, business or scheme commonly known as policy; or who shall write, transfer, sell or deliver, or buy in whole or in part, any of the slips, tickets, tokens or chances used in or connected with such game, business or scheme of policy; or who shall in any other way knowingly take any part whatever in such game, business or scheme of policy, or in any part thereof shall be fined not more than one hundred dollars."

It was assigned by the defendant, as a cause of demurrer to a complaint against him brought under this ordinance, that section 2573 does not create or define the offense alleged in the complaint, nor prescribe a penalty, nor make the acts charged a criminal offense, nor give power to courts of common council to make them such; but that this section is a sufficient authority for the enactment of city ordinances to suppress and punish "policy playing;" and that that phrase is one in such current use as to need no statutory definition

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