Section 4. Whoever upon credit or upon margin contracts to buy or sell, or employs another to buy or sell for his account, any securities or commodities, intending at the time that there shall be no actual purchase or sale, may recover in contract from the other party to the contract, or from the person so employed, any payment made, or the value of anything delivered, on account thereof, if such other party to the contract or person so employed had reasonable cause to believe that said intention existed; but no person shall have a right of action under this section if, for his account, such other party to the contract or the person so employed makes, in accordance with the terms of the contract or employment, personally or by agent, an actual purchase or sale of said securities or commodities, or a valid contract therefor. A purchase or sale of securities, or a contract therefor, whether calling for present or future deliveries, made on any stock exchange or board of trade established for a period of at least ten years prior thereto, and recognized as valid and enforceable by the law of the jurisdiction where made, shall be deemed an actual purchase or sale within the meaning of this section.
If a purchase or sale of the securities or commodities ordered to be bought or sold is made by the person so employed on a stock exchange or board of trade, and other purchases or sales of such securities or commodities are made on the same day on such exchange or board by such person for others in due course of business, and the balance of such purchases or sales of securities or commodities is received or delivered by such person by direction of the clearing house of such exchange or board on the day when such purchase or sale or contract therefor is made, or on the regular clearing day of such exchange or board next thereafter, which shall not be more than four days after the making of such purchase or sale, or contract therefor, such purchases and sales shall be deemed actual purchases and sales within the meaning of this section.
Notes of Decisions
Cited in
9
cases, 1921–1998 · leading case:
Rizika v. Donovan, 695 N.E.2d 1097 (Mass. App. Ct. 1998).
Rizika v. Donovan, 695 N.E.2d 1097 (Mass. App. Ct. 1998).
“287, 289-290 (1958); G. L. c. 137, § 4. The question is whether the rule is otherwise in real estate.”
Ryan v. Whitney, 153 N.E. 449 (Mass. 1926).
“The plaintiff seeks recovery of payments made by her to the defendants in stock transactions which she claims were wagering transactions obnoxious to G. L. c. 137, § 4. After a report by an auditor who found for the defendants, the case was tried before a jury upon the auditor’s…”
Simpson v. Bright, 153 N.E. 571 (Mass. 1926).
· cites it 7× “Simpson did not assent to the claims and demands of the defendants, and on February 25, 1921, presumably in consequence of these demands, caused his wife to begin an action of contract under G. L. c. 137, § 4, as amended St. 1926, c.”
Commonwealth v. Mkt. Warehouse Co., 146 N.E. 29 (Mass. 1925).
“The stock gambling statute, G. L. c. 137, § 4, has been held to be a remedial and not a penal statute, giving the right, to a person entitled to sue, to discharge or release the claim.”
Golden v. Proctor, 266 Mass. 407 (Mass. 1929).
· cites it 2× “The second count is under the gaming statute, G. L. c. 137, §§ 4, 6. At the hearing before the auditor the only count was on the account annexed, but he heard evidence on the theory that the motion to add a second count to the declaration would be allowed.”
Brickley v. Wrenn, 146 N.E. 797 (Mass. 1925).
“We find nothing in G. L. c. 137, § 4, in conflict with this conclusion.”
Bazirgan v. Arnold & Sears, Inc., 175 N.E. 483 (Mass. 1931).
· cites it 2× “The defence relied upon by the defendant in his answer was that the transac *212 tians were in violation of G. L. c. 137, § 4. The action of the defendant was in three counts for the same cause of action, and was to recover the amounts paid the plaintiff in the course of these…”
Weisberg v. Hunt, 131 N.E. 471 (Mass. 1921).
“G. L. c. 137, § 4. The force of this statute upon the present case is not considered.”
Donovan v. Draper, 168 N.E. 91 (Mass. 1929).
“The original declaration contained two counts; the first was for money had and received, and the second set forth a cause of action under G. L. c. 137, § 4. During the hearing before the auditor the plaintiff was required to elect on which of these counts he would rely, and…”
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