
    [No. 15652.
    Department One.
    December 1, 1894.]
    IDA B. BALDWIN, Respondent, v. HERMAN ZADIG et al., Appellants.
    Purchase of Stocks ok Margin — Interest not Recoverable on Amount Paid. — One who sues to recover money voluntarily paid for the purchase of stocks on margin or to be delivered at a future day, in contravention of the provisions of section 26 of article IV of the constitution, is not entitled to recover interest thereon.
    Appeal from a judgment of the Superior Court of the City and County of San Francisco, and from an order refusing a new trial.
    The facts are stated in the opinion of the court.
    
      Edmund Tauszky, for Appellants.
    
      Van Ness & Redman, for Respondent.
   Harrison, J.

This cause involves similar questions to those presented in Kullmann v. Simmens, post, p. 595, this day decided, and the other cases therein referred to. The agreement between the parties in Wetmore v. Barrett, 103 Cal. 246, included all the terms of the agreement under which the transactions between the plaintiff and defendant herein were had, and nearly all the points presented on this appeal were presented and considered in that case. The court, however, erred in the present case in allowing interest to the plaintiff upon the several sums of money which she paid to the defendants. This money was not loaned by her to the defendants, but was voluntarily placed by her in their hands for an illegal purpose. As the money was applied by the defendants to the express purpose for which the plaintiff placed it in their hands, she cannot claim that it was detained by them from her until after she had made a demand for'its return. Both of the parties to the transaction were in pari delicto, and except for the provision of the constitution, there would be no right of recovery in the plaintiff, and we think that this right of recovery must be measured by the terms of tbe constitution in which it is given.

The court below is directed to modify the judgment by deducting therefrom the amount allowed for interest on the sums deposited by the plaintiff with the defendant, and as so modified the judgment and order will stand affirmed.

Garoutte, J., and Van Fleet, J., concurred.

Hearing in Bank denied.

Beatty, O. J., dissented from the order denying a hearing in Bank, and filed the following opinion on the 29th of December, 1894.

Beatty, C. J.

I dissent from the order denying a rehearing in this case.

The judgment, in my opinion, is not sustained by the findings. It is nowhere found that transactions in question were sales of stock on margin or for future delivery, nor do the special facts found necessarily imply such sales. That the evidence would have sustained such a finding may be true, but that is not sufficient. This court cannot take evidence — however conclusive— in place of a finding necessary to sustain the judgment.  