Sheehy

This is an action. founded upon the following clause of section 26 of article IY of the constitution of 1879:

The plaintiff sues to recover money alleged to have been paid to defendant upon contracts for the sale of stocks “on margin.” The cause was tried in the superior court without a jury, and on the facts found judgment was given for the plaintiff for $648 and costs. From this judgment both parties appeal, the plaintiff contending that on the findings the judgment in her favor should have been for about $1,200, and the defendant insisting that the decision of the superior court is contrary to the evidence set out in his bill of exceptions, and also that the specific findings of fact are inconsistent with the general finding to the effect that the transactions between him and the plaintiff “were sales of stock of incorporated’companies on margin, or to be delivered at a future day,” upon which finding the judgment against him is based.

We are of the opinion that our decision in both appeals must depend wholly upon the proper construction of the findings of the superior court, and of the constitutional provision above quoted. The evidence contained in the defendant’s bill of…

I concur in the judgment and in the opinion of Chief Justice Beatty. I see no other possible construction of the constitutional pro *342 vision in question. It is proper to remark, however, that the judiciary cannot avoid the consequences of a provision of constitutional law which allows a party to a contract to profit by it as long as it pays, and to repudiate it by boldly ignoring his solemn obligations as soon as it begins to show loss.

Mr. Justice Van Fleet not having heard the argument herein, and Justices Harrison and De Haven being absent, did not participate herein.

Rehearing denied.