Bartlett v. Collins
| Decision Date | 19 March 1901 |
| Citation | 85 N.W. 703,109 Wis. 477 |
| Parties | BARTLETT ET AL. v. COLLINS. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Sheboygan county; Michael Kerwan, Judge.
Action by Leman Bartlett and others against E. C. Collins. From a judgment in favor of plaintiffs, defendant appeals. Reversed.
The plaintiffs, who are grain commission merchants in the city of Milwaukee, brought this action against the defendant to recover upon open account for moneys advanced and services performed for the defendant in July and August, 1897. The account is set forth in the complaint as follows:
The answer, after setting forth a general denial of the complaint, alleges that the transactions between the parties were gambling transactions, and void under the statutes; that all of the contracts made by the plaintiffs with the defendant by which the plaintiffs undertook to buy and sell wheat for the defendant were made without intending either to receive or deliver grain, but wholly to wager in the market price of wheat at the Chamber of Commerce in the city of Chicago, intending only to pay or receive the difference between the price and the market rate, whatever the same should be. It appeared in the evidence that the defendant, Collins, resided at Plymouth, Wis., and that his business was farming and buying grain; that on the 30th of July, 1897, he telephoned to the plaintiffs and told them to sell him 1,000 bushels of December wheat, Chicago delivery; that on August 6th the defendant directed the plaintiffs to sell another 1,000 bushels of December wheat, Chicago delivery; that the plaintiffs made both sales upon the Chicago Board of Trade through their Chicago agents, the first being made at $.75 1/2, and the second at $.78 1/4. No wheat was actually delivered on either of these sales. The price of wheat advancing, the plaintiffs immediately began to require the deposit of margins by Mr. Collins, and on August 3d the defendant sent $30, and on August 6th $50, in response to such demands. After the 6th of August Mr. Collins failed to send any further margins, and on the 19th of August the plaintiffs bought in 2,000 bushels of December wheat at $.89 1/8 and closed the transaction. No wheat was actually delivered upon these purchases. The trade was claimed to be closed up under certain rules of the Chicago Board of Trade, which were offered in evidence and received under objection, which rules, the plaintiffs claim, authorized the closing up of trades upon failure to deposit sufficient margins in the manner as was done in this case. The defendant's claim was that the whole transaction was a gambling transaction; that there was no intent either on the part of himself or of the plaintiffs to deliver a single bushel of wheat. The laws of the state of Illinois upon the subject were not introduced in evidence. The court instructed the jury, among other things, that the defendant had the burden of proof to satisfy them by the greater weight of evidence that both parties intended to make a gambling or wagering contract, to which instruction the defendant duly excepted. A special verdict was rendered, in which it was found, in answer to appropriate questions, that both the plaintiffs and the defendant in good faith intended and expected an actual delivery of wheat under the two sales, and that the plaintiffs' damages were $182.53. From judgment in accordance with this verdict, the defendant appeals.
M. C. Mead, for appellant.
Moe & Hansen, for respondents.
WINSLOW, J. (after stating the facts).
This is an action by brokers to recover of their principal their commissions and moneys advanced by them in selling grain for the principal. Both brokers and principal reside in this state, and the verbal order or commission given by the principal was given in this state, and any liability resulting from the contract on the part of the principal was evidently to be discharged in this state. It was contemplated, however, by both parties that the transaction in grain, whether a real one or only a speculative one, should take place in Chicago. This is certain, because the plaintiffs so testify, and the defendant by his answer alleges that the intention was to wager in the market price of wheat at the Chamber of Commerce in Chicago. The question whether this contract was an Illinois contract or a Wisconsin contract is an important one in this case, but it has received little attention in the briefs, although the respondents claim that a verdict should have been directed for the plaintiffs because the sale of the wheat was to be made, and in fact was made, in Chicago, and the laws of Illinois with respect to gambling transactions were not introduced in evidence. It does not clearly appear what view the trial judge took of the question, although he instructed the jury, in accordance with the law of this state, in effect, that if both parties intended the transaction to be a mere wagering contract on the price of wheat, without intention to deliver the wheat, but simply to settle by payment or receipt of differences, then the contract was void. Rev. St. 1898, § 2319a; Wall v. Schneider, 59 Wis. 352, 18 N. W. 443. Whether this instruction was based on the idea that the contract was a Wisconsin contract and governed by Wisconsin law, or that, if it was an Illinois contract, then that the law of Illinois would be presumed, in the absence of proof, to be the same as the law of Wisconsin, is not apparent. If it was an Illinois contract, it would seem at least extremely doubtful whether any presumption would be entertained that the law of Illinois was the same as the law of Wisconsin on the subject. It has been held by this court (Hull v. Augustine, 23 Wis. 383) that such a presumption will not be indulged as to a statute imposing a penalty or a forfeiture, as in the case of usury laws. But, however this may be, we are of the opinion that the contract between plaintiffs and defendant was a Wisconsin contract, though the sale of grain was to be made in Chicago. The question as to what law is to govern a contract is not always an easy one to decide. As a general rule the construction and validity of a purely personal contract depend on the law of the place where made. Story, Confl. Laws, § 272. If, however, the contract is made in one place, to be performed in another, then, as a general rule, the place of payment or performance is the place of the contract. 2 Pars. Cont. (8th Ed.) p. 583; Newman v. Kershaw, 10 Wis. 333. This rule is founded on the idea that, in making a personal contract to be fully performed in another state, the parties must have had the law of that other state in view. Lumber Co. v. Stitt, 102 Wis. 450, 78 N. W. 562. But if the contract is to be partly performed where made, and partly in other countries or states, the law of the place where it is made will still govern, unless a clear mutual intention is manifested that it shall be governed by the law of some other country. Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788. Thus, it was held in Morgan v. Railroad Co., 2 Woods, 244, Fed. Cas. No. 9,804, that where a contract was made in one state, to be partly performed there and partly performed in several other states, the contract, so far as it is personal in its nature, was to be governed by the law of the state where it was made. In the present case the contract in question is the brokerage contract by which the defendant employed plaintiffs to sell wheat for him in Chicago, and agreed to pay the plaintiffs their commission for such service and indemnify them against loss. Both parties lived in Wisconsin, and the contract was made here. It is true that one act under the contract was to take place in Illinois, but all other acts, including the payment by the principal of all obligations incurred to his agents, were manifestly to take place in Wisconsin. Under the rules stated, it seems certain that it should be held to be governed by the law of Wisconsin. But, even were it held to be an Illinois contract, it is not seen how the result would be different. It is a universal principle that the courts of no state will hold valid any contract which is injurious to the public rights of its people, offends their morals, contravenes their policy, or violates a public law. 2 Kent, Comm. (14th Ed.) p. 458, and cases cited in note “d.” So, in either event, if the alleged sale of the grain was in fact no sale, but only a gambling transaction, and so intended by both parties, then the...
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In re Jafari
... ... occurred in Colorado and that the case did not come under "the statute of this state." Less than a year later, however, the court in Bartlett v. Collins, 109 Wis. 477, 482, 85 N.W. 703, 705 (Wis.1901), ruled that another gambling contract was subject to the terms of the Wisconsin ... ...
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In re Jafari, Case Number: 06-10155-11 (Bankr.W.D.Wis. 10/16/2007)
... ... occurred in Colorado and that the case did not come under "the statute of this state." Less than a year later, however, the court in Bartlett v. Collins , 109 Wis. 477, 482, 85 N.W. 703, 705 (Wis. 1901), ruled that another gambling contract was subject to the terms of the Wisconsin ... ...
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