In the trial of the case before a judge without *239a jury, the only evidence introduced was an auditor’s report, and the question is whether, as matter of law, the judge was required to find for the plaintiff. The auditor having come to no final decision in favor of either party, but only having found and reported the facts, it was competent for the, judge to draw such inferences from the statements in the report as they fairly would warrant, even if contrary to some of the auditor’s conclusions. Wirth v. Kuehn, 191 Mass. 51, 53, and cases cited.
By a waiver of the first and second counts, the case was tried upon the third count, which alleged that the plaintiff entered into a contract with the defendant whereby they mutually agreed that he was to buy and she was to sell certain shares of the capital stock of the corporations named in the report, with an account annexed for “ gains on trades,” or the value of his services rendered in performance of the agreement. - But, even if the contract was as alleged, the auditor finds that the transactions referred to were for the purchase and sale of these shares upon margins; and, further, he states that the parties mutually intended that there should be no actual purchase and sale of the stocks, but only an adjustment of the account by a settlement of differences between the price at which the stocks could have been bought when the order to buy was given, and the price at which the stocks were selling when the speculation was ordered closed. The judge well might find from the recitals in the report that throughout the plaintiff dealt as a stockbroker with the defendant as a customer, and that, as no stocks were actually bought or sold, the transaction was purely fictitious. The buying and selling of values under such an agreement is founded upon the anticipated price for which each particular stock may in the future be sold in open market, and does not at any time contemplate the actual purchase or sale of stocks as such, or the buying and retaining of them for the purpose of receiving a possible increase in their market value. It is merely a species of gambling, or a wagering contract, alike prohibited at common law and by statute. Barnes v. Smith, 159 Mass. 344, 346. Wakefield v. Farnum, 170 Mass. 422. Lyons v. Coe, 177 Mass. 382, 383. R. L. c. 99, § 4. The plaintiff having purposely entered into a contract which, being against public policy, was illegal and void, can*240not recover either the “ gains ” or a commission for his services, and his requests were rightly refused. Harvey v. Merrill, 150 Mass. 1,11.
Exceptions overruled.