Everingham v. Meighan

• Decision Date: 09 September 1882
• Citation: 13 N.W. 269,55 Wis. 354
• Parties: EVERINGHAM v. MEIGHAn.
• Court: Wisconsin Supreme Court

55 Wis. 354

13 N.W. 269

EVERINGHAM

v.MEIGHAn.

Supreme Court of Wisconsin.

Filed September 9, 1882.

Appeal from circuit court, Milwaukee county.

Jenkins, Elliott & Winkler, for respondent.

Markham & Noyes, for appellant.

ORTON, J.

The defendant, engaged in the grain and produce trade at Cresco, in the state of Iowa, in 1876, shipped and consigned to the plaintiff, a commission merchant in the city of Milwaukee, grain and produce to be disposed of by him for the defendant, and drafts were drawn upon the plaintiff and paid by him from time to time on account of such shipments, and such business continued between the parties until July 1, 1878, at which time there was a balance of $151.80, on account of such shipments and sales, in favor of the plaintiff. A short time after the commencement of this business the defendant employed the plaintiff to buy and sell grain for him, in form, for future delivery at the chamber of commerce in the city of Milwaukee, and to account to him for the profits thereof. This business was called by various names in the correspondence of the parties, such as “scalping,” “deals,” “options,” “speculating deals,” etc., while the former was called the “regular” business, and they were kept separate on the books and accounts. On the first day of July, 1878, the defendant was indebted to the plaintiff on this “scalping” account in the sum of $2,109.64, for losses in the business. A short time before there had been a disagreement between the parties as to which should bear these losses, the defendant insisting that the plaintiff should bear the whole or part of them, and the plaintiff insisting that the defendant should bear the whole; and it was finally arranged--whether by compromise, settlement, accounting, or concession need not now be determined--that the scalping account should stand at $848.20, by deducting from the whole account $1,261.44, which sum, with the addition of $151.80, the balance of the regular account, made $1,000 to be thereafter paid. The parties continued their regular business of the shipment and sale of produce until 1879, with an occasional scalping transaction, and there was then a balance of $799.92, without interest, on both accounts, against the defendant, for which this suit is brought.

The plaintiff charges an accounting and a compromise of differences on July 1, 1878, by which this $1,000 was agreed to be paid. The defendant, in his answer, charges that said scalping business was a gambling transaction between him and the plaintiff, by which the plaintiff was to buy and sell grain for him without receiving or delivering any such grain, and without any intention of either party that any grain should be received or delivered, but with the intention only to pay or receive the differences between the prices named in the contract and the market rate, whichever way the same might be, and that pursuant to such contracts no grain was actually received or delivered, but such differences were so settled and adjusted, whereby the plaintiff claimed he had lost the said sum of $2,109.64 up to July 1, 1878, and that the plaintiff deducted therefrom $1,261.44, and that the balance of $848.20 was to continue to be kept as an account separate from the account of the regular grain shipments. And the defendant further charged that all such pretended losses upon such gambling transactions were incurred by the plaintiff by his failure and refusal to comply with his instructions in regard to the time and manner of purchasing and selling the grain under said gambling contracts. The testimony of the defendant clearly and positively supports his answer, and especially the allegations thereof relating to the transactions of the parties in the purchase and sale of grain in the city of Milwaukee, and at the chamber of commerce, and makes the contracts of the plaintiff, for such purchase and sale of grain, gambling contracts, and the employment of the plaintiff by the defendant, for that purpose, a gambling transaction, within the definition and authority of the case of Barnard v. Backhaus, 52 Wis. 593, [S. C. 9 N. W. REP. 595,] and the testimony of the plaintiff rather corroborates than denies the testimony of the defendant in this respect.

The transaction out of which these pretended losses arose and in which they were incurred, according to the testimony of the defendant, was not only illegal and void, but criminal. The learned circuit judge gave to the jury a very long opinion concerning this transaction, and boldly, if not wisely, criticised the opinion of this court in Barnard v. Backhaus; but I do not understand him to have instructed the jury that there was not evidence establishing the illegality of this claim for losses as having been incurred by gambling transactions. The instruction appears to be that notwithstanding the original claim of $2,109.64 for these losses was void for that reason, yet, there having been differences concerning the same, it was compromised at a less sum, which became thereby a valid and lawful claim against the...