two former of these cases it was held that there might be, and that under the circumstances then existing there was, an implied warranty of merchantable quality notwithstanding the sale was by a sample, which sample was itself not of merchantable quality, the defect not being discoverable upon a reasonable examination of the sample.

(150 Mass. 1)

HARVEY et al. v. MERRILL et al. (Supreme Judicial Court of Massachusetts. Suffolk. Sept. 5, 1889.)

without allowance for any defects whatso- | the description given, in its commercial sense. ever," and this was held to mean only all Drummond v. Van Ingen, L. R. 12 App. faults which a copper-fastened vessel might Cas. 284; Mody v. Gregson, L. R. 4 Exch. have, the court saying by way of illustration: 49; Nichol v. Godts, 10 Exch. 191. In the "Suppose a silver service sold with all faults, and it turns out to be plated. So, in Nichol v. Godis, 10 Exch. 191, an agreement for the sale and delivery of certain oil, described as "foreign refined rape oil, warranted only equal to samples," was held to be not complied with by the tender of oil which was not foreign refined rape oil, although it might be equal to the quality of the samples. The The point urged in the defendants' argudecision of this case has stood in England, ment, that the plaintiffs' remedy was dethough not without some questioning at the stroyed by their acceptance of the goods, was bar. See Wieler v. Schilizzi, 17 C. B. 619; not taken at the trial, and no ruling was Josling v. Kingsford, 13 C. B. (N. S.) 447; asked adapted to raise the question as to the Mody v. Gregson, L. R. 4 Exch. 49; Jones effect of such acceptance. For these reasons, v. Just, L. R. 3 Q. B. 197; Randall v. New-in the opinion of a majority of the court, the son, L. R. 2 Q. B. Div. 102. In the present entry must be: Exceptions overruled. case, by a fair and reasonable construction of the bought note, effect can be given to both of the phrases used to describe the rubber. Construed thus, the article sold was 102 bales of Ceara rubber, of the second quality, and as good as the samples. The rubber delivered was in fact Ceara rubber. GAMING-WAGERING CONTRACTS-FUTURES. There was no question that it was of the give orders to plaintiffs from time to time, to pur1. A contract providing that defendants should right kind; but it was not of the second chase and sell on the board of trade, in their own quality. There is no necessity to disregard names, certain merchandise on account of defendthe words describing the rubber as of the ants, and before the time of delivery to procure second quality. They signified a distinct other according to the usages of the board, defendsuch purchases and sales to be set off against each and well-known, though not absolutely uni- ants not to receive or deliver any merchandise, but form, grade of rubber. There was no exact only to pay to or receive from plaintiffs the differstandard or dividing line between rubber of ences between purchase and selling price, and plaintiffs to receive a certain margin and commisthe second quality and of the third quality, sion, is a wagering contract, and void as against any more than there is between daylight and public policy, though plaintiffs' purchases and darkness. But nevertheless a decision may sales in pursuance of such contract were legal. be reached, and it may be easy to reach it in plaintiffs cannot recover commissions or money 2. Such contract is not only void, but illegal, and a particular case, that certain rubber is or is paid in settlement of differences between purnot of the second quality. This general desig-chases and sales made in pursuance thereof. nation being given, the specification "as per samples" being also included in the note, the rubber must also be equal to the samples. It must be rubber of the second quality, and it must be equal to the samples. If it fails in either particular, it is of no consequence that it conforms to the other particular. There is no inconsistency in such a twofold warranty; and, this rubber having been found to be not of the second quality, the warranty was broken, without regard to the question whether or not it was equal to the samples. The fact that the plaintiffs had an opportunity to examine the rubber, and actually made such examination as they wished, will not necessarily do away with the effect of the warranty. The plaintiffs were not bound to exercise their skill, having a warranty. They might well rely on the description of the rubber, if they were content to accept rubber which should conform to that description. Henshaw v. Robins, 9 Metc. 83; Jones v. Just, L. R. 3 Q. B. 197. And the exhibition of a sample is of no greater effect than the giving of an opportunity to inspect the goods in bulk. Notwithstanding the sample or the inspection, it is an implied term of the contract that the goods shall reasonably answer v.22N.E.no.8-4

termined by the law of another state, and there is no 3. Where the validity of a contract is to be deevidence that the common law of such state differs from that of Massachusetts, or that a statute of that state has been violated, the question will be determined by the common law of Massachusetts.

Exceptions from supreme judicial court, Suffolk county; OLIVER WENDELL HOLMES, JR., Judge.

Action by William P. Harvey and others against Z. Taylor Merrill and others, for commissions alleged to have been earned by plaintiffs, as brokers for defendants, and for amounts alleged to have been paid by plaintiffs as losses on orders for purchases and sales alleged to have been made on account of defendants. Verdict for plaintiffs, and defendants except.

Hutchins & Wheeler, for plaintiffs. R. M. Morse, Jr., and W. S. Knox, for defendants.

FIELD, J. The rights of the parties are to be determined by the law of Illinois, but there is no evidence that the common law of Illinois differs from that of Massachusetts. We cannot take notice of the statutes of Illinois except so far as they are set out in the auditor's report, and the auditor has set out but one statutory provision of that state, and has

found that the parties have not acted in violation of that. We are therefore to determine whether the contract between the parties, as the auditor has found it to be, is illegal and void by the common law of Massachusetts.

on the board of trade, set them off against each other, and now sue the defendants for the differences which they have paid, and for their commissions. The auditor has found that "in a vast majority of the transactions of the board of trade settlement was made It is not denied that if, in a formal con- by the set-off of opposite contracts." In his tract for the purchase and sale of merchan- supplemental report he says: "My conclusion dise to be delivered in the future at a fixed is unchanged that the parties to this suit enprice, it is actually the agreement of the par-tered into the dealings with each other which ties that the merchandise shall not be delivered and the price paid, but that, when the stipulated time for performance arrives, a settlement shall be made by a payment in inoney of the difference between the contract price and the market price of the merchandise at that time, this agreement makes the contract a wagering contract. If, however, it is agreed by the parties that the contract shall be performed according to its terms if either party requires it, and that either party shall have the right to require it, the contract does not become a wagering contract because one or both of the parties intend, when the time for performance arrives, not to require performance, but to substitute therefor a settlement by the payment of the difference between the contract price and the market price at that time. Such an intention is iminaterial, except so far as it is made a part of the contract, although it need not be made expressly a part of the contract. To constitute a wagering contract, it is sufficient, whatever may be the form of the contract, that both parties understand and intend that one party shall not be bound to deliver the merchandise, and the other to receive it and to pay the price, but that a settlement shall be made by the payment of the difference in prices.

are the subject thereof with a clear understanding that actual deliveries were not contemplated, and were not to be enforced; and it appears to me that the question whether the members of this board with whom the defendants dealt had such an understanding with each other is not material to the issue of this case." The peculiarity of this case, according to the finding of the auditor, is that, while the contracts which the plaintiffs made on the board of trade must be taken to be legal, the plaintiffs have undertaken to agree with the defendants that these contracts should not be enforced by or against them, except by settlements according to differences in prices. If such an agreement seems improbable, it is enough to say that the auditor has found that it was made. The usages of the board of trade were such that the plaintiffs might well think that they risked little or nothing in making such an agreement. Indeed, the distinction in practice between the majority of contracts which by the auditor's report appear to be made and settled on the board of trade, and wagering contracts, is not very plain; and brokers, for the purpose of encouraging speculation and of earning commissions, might be willing to guaranty to their customers that the contracts made for them on the board of trade should not be enforced, except by a settlement according to differences in prices.

The construction which we think should be given to the auditor's report is that he finds that the contracts, which plaintiffs made We do not see why the agreement between on the board of trade with other members of the plaintiffs and defendants that the defendthat board, were not shown to be wagering ants should not be required to receive or decontracts, and that the contract which the de- liver merchandise, or to pay for or receive fendants made with the plaintiffs was that pay for merchandise, but should be required the defendants should give orders, from time to pay to and to receive from the plaintiff's only to time, to the plaintiffs for the purchase and the differences in prices, is not, as between sale, on account of the defendants, of equal the parties, open to all the objections which amounts of pork, to be delivered in the fut-lie against wagering contracts. On the conure; that the plaintiffs should, in their own names, make these purchases and sales on the board of trade; that the plaintiffs should, at or before the time of delivery, procure these contracts to be set off against each other, according to the usages of that board; that the defendants should not be required to receive any pork and pay for it, or to deliver any pork and receive the pay for it, but should only be required to pay to the plaintiffs, and should only be entitled to receive from them, the differences between the amounts of money which the pork was bought for and was sold for, and that the defendants should furnish a certain margin, and should pay the plaintiffs their commissions. The defendants gave orders in pursuance of this contract. The plaintiffs made the purchases and sales

struction we have given to the auditor's report, the plaintiffs, in their dealings with the defendants, in some respects acted as principals. In making the contracts on the board of trade with other brokers, they may have been agents of the defendants. In agreeing with the defendants that they should not be compelled to perform or accept performance of the contracts so made, the plaintiffs acted for themselves, as principals. If the defendants had made a contract with the plaintiffs to pay and receive the differences in the prices of pork ordered to be bought and sold for future delivery, with the understanding that no pork was to be bought or sold, this would be a wagering contract. On such a contract the defendants would win what the plaintiffs lose, and the plaintiffs would win

what the defendants lose. But, so far as claiming in a court of law any indemnity the defendants are concerned, the contracts from the defendant in respect of the liabilwhich the auditor has found they made with ities he had incurred. Cannan v. Bryce, 3 the plaintiffs are contracts on which they Barn. & Ald. 179; McKinnell v. Robinson, win or lose according to the rise or fall in 3 Mees. & W. 434; Lyne v. Siesfield, 1 Hurl. prices, in the same manner as on wager- & N. 278. But it has been held that, aling contracts. If the plaintiffs, by virtue of though gaming and wagering contracts canthe contracts they made with other members not be enforced, they are not illegal. Fitch of the board of trade, were bound to receive v. Jones, 5 El. & Bl. 238, is plain to that efor deliver merchandise, and to pay or receive fect." On appeal, BRETT, L. J., said: "It the price therefor, on the auditor's finding was further suggested in Cooper v. Neil1 that they must be held, as against the defendants, the agreement was that, although the plainto have agreed to do these things on their tiff, being broker to the defendant, but conown account, and that the defendants should tracting in his own person as principal, only be bound to pay to them and to receive should enter into real bargains, yet the defrom them the differences in prices. If the fendant should be called upon only to pay defendants, as undisclosed principals, should the loss if the market should be unfavorable, be held bound to other members of the board and should receive only the profit if it proved of trade on the contracts made by the plain-favorable; and that no further liability should tiffs, the plaintiffs, by the terms of their em-accrue to the principal, whatever might beployment, would be bound to indemnify the come of the broker upon the stock exchange; defendants, except so far as the contracts so that, as regarded the real principal, the were settled by a payment of differences in defendant in the action, it should be a mere prices. The agreement of the parties, as the gambling transaction. I then considered that auditor has found it, excludes any implied a transaction of that kind might fall within liability on the part of the defendants to in- the provisions of 8 & 9 Vict. c. 109, § 18, but demnify the plaintiffs, except for money paid I thought that there was no evidence of it. in the settlement of differences in prices. And with respect to the present action I say The position of the plaintiffs towards the that there is no evidence that the bargain bedefendants is no better than it would have tween the parties amounted to a transaction been if the plaintiffs had been employed to of that nature. I retract nothing from what make wagering contracts for pork on account I said in that case." In England, wagering of the defendants, and had made such con- contracts concerning stocks or merchandise tracts, because the plaintiffs, relying upon the are not void at common law, and all the usages of the board of trade, have undertaken judges in Thacker v. Hardy were of opinion to agree with the defendants that whatever that the facts in that case did not show that contracts they make shall bind the defend- the transactions between the parties were in ants only as wagering contracts, and shall be violation of the statute. settled as such.

The plaintiffs contend that, even if the contracts which the defendants authorized them to make and which they made on the board of trade had been wagering contracts, yet they could recover whatever money they had paid in settlement of these contracts in the manner authorized by the defendants. In Thacker v. Hardy, L. R. 4 Q. B. Div. 685, the court found that the plaintiff was employed to make contracts, and ruled that the understanding between the plaintiff and his customer, that the contract should be so managed that only differences in prices should be paid, did not violate the provisions of 8 & 9 Vict. c. 109, § 18. LINDLEY, J., in giving the opinion at the trial, said: "What the plaintiff was employed to do was to buy and sell on the stock exchange, and this he did; and everything he did was perfectly legal, unless it was rendered illegal, as between the defendant and himself, by reason of the illegality of the object they had in view, or of the transaction in which they were engaged. Now, if gaming and wagering were illegal, I should be of opinion that the illegality of the transactions in which the plaintiff and the defendant were engaged would have tainted, as between themselves, whatever the plaintiff had done in furtherance of their illegal designs, and would have precluded him from

In Irwin v. Williar, 110 U. S. 499, 510, 4 Sup. Ct. Rep. 160, 166, the supreme court of the United States say of wagering contracts that "in England it is held that the contracts, although wagers, were not void at common law, and that the statute has not made them illegal, but only non-enforceable, (Thacker v. Hardy, ubi supra;) while generally, in this country, all wagering contracts are held to be illegal and void as against public policy, (Dickson's Ex'r v. Thomas, 97 Pa. St. 278; Gregory v. Wendell, 40 Mich. 432; Lyon v. Culbertson, 83 Ill. 33; Melchert v. Telegraph Co., 3 McCrary, 521, 11 Fed. Rep. 193, and note; Barnard v. Backhous, 52 Wis. 593, 9 N. W. Rep. 595; Kingsbury v. Kirwan, 77 N. Y. 612; Story v. Salomon, 71 N. Y. 420; Love v. Harvey, 114 Mass. 80.") That court also say, (page 510, 110 U. S., and page 166, 4 Sup. Ct. Rep.:) "But we are also of the opinion that when the broker is privy to the unlawful designs of the parties, and brings them together for the very purpose of entering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by himself on behalf of either in forwarding the transaction." This was decided in Embrey v. Jemison, 131 U. S. 336, 9 Sup. Ct. Rep. 776. See, also,

1 Weekly Notes, 1878, p. 128.

was wrongful is a question upon which the be done without impairing the integrity or mortgagees have a right to be heard. They stability of the existing wall. The purpose

are immediately interested in resisting the of each of the adjoining owners in providing plaintiff's claim, and are necessary parties to for a party-wall is the same. It is intended the suit, and their petitions that the decree to form part of a building on his land. A should be vacated, and they admitted as de-party-wall is as beneficial to him as a several fendants, were properly allowed.

wall, and it is no detriment to him, for the The wall, as it stood before it was built up- use which one owner makes of it as a wall of on by Edwards, was a party-wall. It was his building cannot impair the use of the othbuilt and conveyed by the owner of both es-er. In effect each owner acquires the right tates as the partition wall between the houses, to build one-half of his wall upon his neighand has been used as a party-wall by the sev- bor's land, and each, contributing his poreral owners of the houses for 40 years. No tion of the expense, has a right to an equal express grant, or agreement, or statute, de- benefit in a wall so built. The wall is a subfines or limits the rights of the parties, and stitute to each for a separate wall, and there they are such as the law implies to have been can be no implied limitation in his right to the intention of the parties from the grant use it as he would use his several wall, exexpressed or implied from user of the wall as cept that he shall not impair its value to his a party-wall, and it is immaterial whether neighbor. With this limitation, it will be the grant is by the single owner of both es- presumed that each intended it for all uses tates or is the mutual grant of several own- and purposes to which the wall of his building See Webster v. Stevens, 5 Duer, 553; would ordinarily and properly be put. That Richards v. Rose, 9 Exch. 218. The wall presumption is for the advantage of both and must be taken to have been built as a single to the detriment of neither. If the party-wall structure, and granted by the owner or own- cannot be built up, neither house can be raised ers of two estates to constitute the wall of without building a new wall; for if one owner the house upon each estate. It was not the could lawfully build a several wall upon the dividing line between the two houses, be- part of the wall over his own land, it would cause it was a part of each house, and each not be a right of practical value. He could owner had an equal right in the whole wall not build on it a sufficient wall. It is not with the other owner. The estate which the reasonable to suppose that each party inowners have in it is an estate in a party-wall, tended that he should never use the wall for and the rights of the owners in it are found a building higher than the one that should be in their presumed intention in the mutual first erected, and a provision to that effect, grant of a party-wall, rather than by classify- detrimental to both parties and beneficial to ing it with other estates, and deducing its neither, cannot be presumed. If it is said qualities from the name given to it. The that one owner may not wish to use the wall English courts, when, looking at the common as built up, and may prefer not to have the interest and right of the parties, they call it adjoining building higher than his own, the a tenancy in common, do not mean that either answer is that that is a particular and excepparty can have partition; and the courts of tional circumstance which cannot be preNew York, when, considering the rights of sumed. It is presumed to be a detriment to one owner in the part of the wall on the land the owner of a building to deprive him of the of the other owner, they say that each owns power to make additions to it, and grants and one-half in severalty with an easement in the contracts will be construed on that presumpother half, are not prevented from deciding tion, unless it is controlled by their terms. in the same case that each can take down and Not only would a provision implied in a grant rebuild the half of the other, (Partridge v. of a party-wall, that it should not be carried Gilbert, 15 N. Y. 601;) nor from deciding higher than as originally constructed, be conthat the easement is not an incumbrance up- trary to the interests and the apparent intenon either estate, but a benefit to each, (Hen- tion of the parties, but it would not be in acdricks v. Stark, 37 N. Y. 106; see Bertram cordance with public policy. The public inv. Curtis, 31 Iowa, 46.) We are not consid-terest is not promoted by putting impediering the frequent cases where the rights of the parties are defined by special terms or agreements, but the simple grant, express or implied, of a party-wall; and this is a grant by the owner of both estates, or the mutual grant of the separate owners, of rights in a wall situated on both estates. What these rights are depends upon the presumed intention of the parties. The question involved in this case is whether such a grant is limited, as to the height of the wall, to a particular wall, or to the wall which shall first be built under it, or whether it gives to either party a right to build higher an established wall, for the purpose of putting an addition upon his house. It is assumed that this will

ments in the way of erecting buildings, and the law will not be swift to construe the acts of parties so as to produce that effect.

We have been referred to very few authorities upon the subject, and the question of the right of one owner of a party-wall to build it up seems to have been very seldom raised. Phillips v. Bordman, 4 Allen, 147, discusses the right in a party-wall as an easement, and there is certainly nothing in the case unfavorable to the right to build upon the wall. Sanborn v. Rice, 129 Mass. 387, was tort for breaking and entering the plaintiff's close by building up the partition wall between the houses of the plaintiff and defendant, and the action was sustained, but the only ques