He made out a prima facie case and the burden was upon the defendants to prove that actual purchases or sales were made, to escape the liability imposed by the statute. Fiske v. Doucette, 206 Mass. 275. Greene v. Corey, 210 Mass. 536, 546. Adams v. Dick, 226 Mass. 46, 53. Houghton v. Keveney, 230 Mass. 49. The more difficult question is whether the defendants have sustained the burden of showing that they made actual purchases and sales of the securities.

The plaintiff was entitled to the benefit of evidence in the form of findings of the auditor that were more favorable to her than her own testimony. Adams v. Dick, 226 Mass. 46, 52. The broad statement in Brooks v. Davis, 294 Mass. 236, 238, that a general finding for the plaintiff in an auditor's report warranted a verdict for the plaintiff "unless this general finding was necessarily inconsistent with other findings in the report or with evidence outside the report binding on the plaintiff" is not to be construed as meaning that the evidential value of such a general finding is destroyed as matter of law by testimony of the plaintiff, which, under the general principle stated, is "binding on the plaintiff" only in the absence of evidence more favorable to the plaintiff.

It was decided in Fiske v. Doucette, 206 Mass. 275 (a suit under the statute just referred to), that purchases and sales of stock therein described and made through a clearing house by the balancing of transactions made in a stock exchange did not constitute "actual" purchases and sales of the securities. To the like effect are Greene v. Corey, 210 Mass. 536, and Adams v. Dick, 226 Mass. 46, 53. But where the statute above referred to is not involved, a valid contract may be made with reference and subject to the rules of a stock exchange. Hall v. Paine, 224 Mass. 62, 73, 74, 76. Bibb v. Allen, 149 U.S. 481. Clews v. Jamieson, 182 U.S. 461. Bond v. Hume, 243 U.S. 15. Dillaway v. Alden, 88 Maine, 230.

While this "Memorandum" is no part of the record ( Cohen v. Berkowitz, 215 Mass. 68, 71), the general finding for the defendants "imports a finding of all the subsidiary facts essential to that conclusion." Adams v. Dick, 226 Mass. 46, 53. Assuming then that the auditor's finding on which the plaintiff relies, as to three alleged short sales, and the settlements made without the completion of the purchase or sale of the securities, created a prima facie case in his favor, under R. L. c. 99, § 6, they were not conclusive; and their effect was overcome in the mind of the auditor by other evidence before him. Apparently he was not satisfied that even in these few transactions the plaintiff intended that actual sales should not be effected, especially in view of the general course of his dealings from the beginning, which indicated that real transactions were contemplated. The trial judge was warranted in finding that the plaintiff had failed to make out a case under the wagering statute. Chandler v. Prince, 217 Mass. 451; S.C. 221 Mass. 495, 506. Zembler v. Fitzgerald, 234 Mass. 236. The facts as found distinguish this from cases like Adams v. Dick, 226 Mass. 46, and Houghton v. Keveney, 230 Mass. 49.

It is now urged that there was a breach of contract by the defendants, for which the plaintiff can recover at common law. In determining what was the contract between the parties, as indicated by the facts found, the finding for the defendants imports a finding in their favor of all the subsidiary facts essential to that conclusion. Adams v. Dick, 226 Mass. 46, 52. The plaintiff in November, 1916, desired to buy one hundred shares of the Chicago, Rock Island and Pacific Railroad Company Preferred "B" stock. The stock had not been issued; but the proposed plan for the reorganization of the road contemplated its issue in the following July. Any purchase of this stock would be "when, as and if" issued, and the plaintiff so understood. He did not personally see the defendants, but requested one Coolidge, an officer of a trust company of which the plaintiff was a customer, to transmit the order to the defendants; and he did so. The stock was not dealt in upon the Boston Stock Exchange; and the defendants had no office in New York. The auditor found, "Mr. Coolidge knew that the said stock could be bought only in New York; that the defendants' usual course of business was, upon receipt of an order to buy such a stock, to transmit the order to the defendants' correspondents in New York for execution there. Mr. Coolidge also knew that the defendants wou

" During the hearings, the counsel for the defendants stated that in view of the recent decision of this court in the case of Adams v. Dick, 226 Mass. 46, "the defendants could not show any actual purchase or sale of stock (as therein defined) for which the plaintiff gave orders for them to buy or sell or that they had made any valid contracts therefor." The provisions of § 4 of the statute applicable to the case are: "Whoever . . . upon margin . . . employs another to buy or sell for his account, any securities . . ., intending at the time that there shall be no actual purchase or sale, may sue for and recover in an action of contract . . . from the person so employed, any payment made, or the value of anything delivered, on account thereof, if such . . . person so employed had reasonable cause to believe that said intention existed; but no person shall have a right of action under the provisions of this section if, for his account, . . . the person so employed makes, in accordance with the terms of the . . . employment, personally or by agent, an actual purchase or sale of said securities . . ., or a valid contract therefor."

Lander v. Samuel Heller Leather Co. Inc. 314 Mass. 592. Langdoc v. Gevaert Co. of America, Inc, 315 Mass. 8. Godfrey v. Caswell, post, 161. The general finding for the defendants in the action brought against them by the plaintiff imports a finding of every subsidiary fact necessary to support it. Adams v. Dick, 226 Mass. 46. Povey v. Colonial Beacon Oil Co. 294 Mass. 86. First National Stores Inc. v. H.P. Welch Co. 316 Mass. 147. The judge must have impliedly found that the plaintiff committed a breach of her agreement and that she was thereby precluded from recovering her deposit. Smith v. Greene, 197 Mass. 16. King v. Milliken, 248 Mass. 460. Chertok v. Kassabian, 255 Mass. 265. Cobb v. Library Bureau, 268 Mass. 311, 316, 317.

The general finding that the defendant was a contract carrier in reference to the transportation of the goods which were destroyed carries with it every implied finding, not inconsistent with the subsidiary findings, necessary to support the general conclusion reached by the judge. Adams v. Dick, 226 Mass. 46. Dolham v. Peterson, 297 Mass. 479. Our laws impose a penalty upon one who without authority engages in the business of a contract carrier, and also provide for the issuance of an injunction against the continuance of the business by one who has no permit to do so, G.L. (Ter.

Payment for successive shipments at the times fixed in a divisible contract for the sale of goods to be delivered in instalments is ordinarily an important and substantial requirement of the contract, and whether the failure to pay in accordance therewith constitutes a breach of such character and extent as to entitle the seller to consider the entire contract as broken and to refuse to be further bound by it is usually a question of fact. Stephenson v. Cady, 117 Mass. 6. National Machine Tool Co. v. Standard Shoe Machinery Co. 181 Mass. 275. Eastern Forge Co. v. P. F. Corbin, 182 Mass. 590. Dudley v. Wye, 230 Mass. 350. Samuels v. W.H. Miner Chocolate Co. 235 Mass. 312. Glines v. Berry Box Package Co. Inc. 248 Mass. 518. Bradley Lumber Manuf. Co. v. Cutler, 253 Mass. 37. It appears from the record that the general finding for the defendant seller rests on a finding impliedly made by the judge that the failure to pay was a material breach of the contract. Adams v. Dick, 226 Mass. 46. Povey v. Colonial Beacon Oil Co. 294 Mass. 86. This general finding cannot stand if the buyer had the right, on account of the seller's breach of warranty, to withhold payment until the amount of his indebtedness for the June shipments was ascertained by a judgment.

Napier v. Springfield, 304 Mass. 174, 178. The general finding against the petitioner imports the finding of all subsidiary facts consistent with that conclusion of which the evidence was susceptible not inconsistent with the facts actually found or with rulings of law. Adams v. Dick, 226 Mass. 46. Gottman v. Jeffrey-Nichols Co. 268 Mass. 10, 12. It has not been shown that there was any abuse of sound judicial discretion in dismissing the petition.