John L. Dunlap & Co. v. Perry

Citation230 S.W. 291,191 Ky. 290
PartiesJOHN L. DUNLAP & CO. v. PERRY.
Decision Date26 April 1921
CourtCourt of Appeals of Kentucky

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Suit by John L. Dunlap and another, as partners, composing the firm of John L. Dunlap & Co., against H. P. Perry. From a judgment for defendant, plaintiffs appeal. Affirmed.

Blakey & Lewis, of Louisville, for appellants.

Edwards Ogden & Peak, of Louisville, for appellee.

SETTLE J.

The appellants, John L. Dunlap and W. Newman Clarke, partners composing the firm of John L. Dunlap & Co., doing business in the city of Louisville as stock and grain brokers, sued the appellee, H. P. Perry, of Henry county, in the court below seeking the recovery of $557.50, alleged in the petition to be owing them by the latter as a balance on account for wheat purchased January 20, 1917, for him by them as brokers on the Chicago grain market for future delivery, and a commission of $7.50 due them on such purchase; the total of wheat so purchased, as further alleged, being 5,000 bushels, which at $1.90 1/2 cents per bushel, the market purchase price amounted to $9,525, no part of which, save $500, was ever paid appellants by appellee. The appellee having failed, upon appellants' demand, to pay the remainder of the $9,525 due on the purchase of the wheat, it was sold by the latter on the Chicago market at $1.69 1/2 per bushel, or $8,475, which was the highest market price then obtainable, and that, crediting appellee with the proceeds of the sale and the $500 he paid them, there was left due appellants the $557.50 sued for, which is yet unpaid.

An answer of two paragraphs was filed by appellee to the petition as amended, the first containing a denial of such indeotedness and each item thereof, and alleging that the claim of appellant arose out of an illegal purchase and sale on margin of the wheat alleged to have been made by them for him on the Chicago Stock Exchange or grain market, none of which was ever actually delivered or intended to be delivered; the transaction in question being, as further alleged, a mere wagering or gaming contract for the gain or loss of money upon the fluctuation of the market price of wheat on the grain market.

It was in substance alleged in the second paragraph of the answer that in the alleged purchase and sale by appellants of the wheat in question appellee was illegally charged by appellants, induced to pay, and did pay them certain sums of money by way of margins, set forth in the answer, to cover the supposed risk of carrying same awaiting rising prices, amounting in the aggregate to $432.50, judgment for which was prayed by appellee against appellants, and to that end the answer made a counterclaim and set-off.

Following the filing by appellants of a reply controverting the affirmative matter of the answer, the parties waived a trial by jury and submitted the case to the court for its decision upon the merits, which, after hearing the evidence, rendered judgment dismissing the appellants' petition and awarding appellee recovery of the $432.50 asserted by his counterclaim and all costs expended by him in the action; the judgment being accompanied by the court's separate conclusions of law and fact. The appellants moved for and were refused a new trial and have appealed.

The nature of the transaction between the parties appears from the following facts contained in the bill of evidence: On January 19, 1917, the appellee, acting upon the suggestion and advice of Frank Brewer, the agent of appellants, gave the latter an order to purchase for him on the grain market 5,000 bushels of wheat for what was called the "May delivery," at $1.90 1/2 per bushel and then, on appellants' demand, paid them as a margin on the purchase $150, which with the further sum of $282.50 required by them and paid by him January 26, 1917, as an additional margin for carrying the wheat on the market, made the total of $432.50 of margins for which his counterclaim was asserted, and the trial court gave him judgment. Thereafter, the price of wheat in the open market having declined, appellants demanded of appellee payment of another margin, accompanied by a written notice that, if not paid by a fixed date, they would sell the wheat on the open market for the account of the appellee. The appellee refused to put up the additional margin demanded by appellants, and the latter in February, 1917, sold the 5,000 bushels of wheat on the Chicago market at $1.69 1/2 per bushel. It will be observed that their action against appellee is for the difference between the purchase price of the wheat and that at which it sold, after crediting him with the amounts the petition admits were paid by him on the purchase price, the total of which $500 exceeds by $67.50 the total of credits, $432.50, claimed by appellee to have been paid them...

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6 cases
  • W.R. Craig & Company v. Johnson
    • United States
    • United States State Supreme Court — District of Kentucky
    • June 27, 1928
    ...parties, and it was a mere wager on the fluctuations of the market. Sawyer, Wallace & Co. v. Taggart, 14 Bush, 727; John L. Dunlap & Co. v. Perry, 191 Ky. 290, 230, S.W. 291; Beadles, Wood & Co. v. McElrath, 85 Ky. 230, 3 S.W. 152, 8 Ky. Law Rep. 848; Bibb v. Allen, 149 U.S. 481, 13 S. Ct. ......
  • Dowell v. Pumphrey
    • United States
    • Kentucky Court of Appeals
    • December 15, 1922
    ... ... futures is gambling (Lyons v. Hodgen, 90 Ky. 280, ... 13 S.W. 1076, 12 Ky. Law Rep. 211; Dunlap & Co. v ... Perry, 191 Ky. 291, 230 S.W. 291); betting on an ... election (Commonwealth v. Leak, ... ...
  • Clark v. McNeill
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • April 4, 1928
    ...defendants' business any cotton was ever delivered to or by the customer. Cf. Hyman v. Hay (C. C. A. 5) 277 F. 898; also Dunlap v. Perry, 191 Ky. 290, 230 S. W. 291. Jesse McNeill seems never to have signed and returned to defendants the forms of acknowledgment of confirmation referred to. ......
  • Bass v. Simon
    • United States
    • Kentucky Court of Appeals
    • December 18, 1931
    ... ...          To the ... same effect see Dunlap & Co. v. Perry, 191 Ky. 290, ... 230 S.W. 291; Johnson v. Clark & Co., 224 Ky. 598, 6 ... S.W.2d ... ...
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