Lowry v. Dillmann

• Decision Date: 08 January 1884
• Citation: 18 N.W. 4,59 Wis. 197
• Parties: LOWRY v. DILLMANN.
• Court: Wisconsin Supreme Court

59 Wis. 197

18 N.W. 4

LOWRY

v.DILLMANN.

Supreme Court of Wisconsin.

Filed January 8, 1884.

Appeal from circuit court, Milwaukee county.Jenkins, Winkler & Smith, for respondent, Israel H. Lowry.

Goodwin & Benedict, for appellant, Adam Dillmann.

COLE, C. J.

The defense set up in the answer to the note sued on is that it was given to the plaintiff on the settlement of balances on gambling contracts in barley, which the plaintiff had made with the defendant, or with others at his request. At the close of the testimony the learned circuit court directed the jury to return a verdict in favor of the plaintiff for the amount due on the note. The sole question we have to consider is, was there sufficient evidence to carry the case to the jury on the point whether or not the note was given for differences or losses in gambling contracts? We are all clearly of the opinion that the case should have been submitted on the evidence, and that it was error to withdraw it from the consideration of the jury. This court has held that contracts for the sale and purchase of commodities, where neither party intends to deliver or accept the property sold, but where they are merely to pay the differences in price according to the rise and fall in the market, are gambling contracts, and that any security founded on such transactions is void. Barnard v. Backhaus, 52 Wis. 593; [S. C. 9 N. W. REP. 595;] Everingham v. Meighan, 55 Wis. 354; [S. C. 13. N. W. REP. 269.] The doctrine of those decisions will be rigidly enforced in all cases fairly coming within its scope and meaning. This is all we deem it necessary to say upon the law of the case.

As the case must go back for a new trial, it would be improper to go into any general discussion of the evidence, or even to indicate our views as to what facts it establishes. Substantially the same testimony may be given on another trial. It should be considered by the jury without any bias which an expression of our views upon it might create. We will only allude to some aspects of the case which have led us to the conclusion we have announced. It appears the defendant is engaged in the business of keeping a saloon in the city of Milwaukee, and the plaintiff is a commission merchant doing business in the chamber of commerce in that city. The defendant testified in effect that sometime in October, 1879, a clerk in the employ of and acting for the plaintiff came to his saloon, said “everything was up,” and “he thought there was money in barley.” As the result of this interview the defendant gave the clerk $800 as margins on 15,000 bushels of barley.The price of barley declined, and soon the defendant was called upon to advance more margins. Thus the business ran along until the following March, “when the deal was closed,” and the note in question was given “for differences in barley.” Monthly statements were rendered the defendant, which upon their face purport to be an account of purchase and sale of barley, showing what the defendant had made or lost in the transaction, and giving the amount of grain sold and purchased. The defendant said that he never received from the plaintiff, or anybody else for him, any barley; that he was never offered any; that he never ordered the plaintiff, or any body else, to sell any barley for him; that he never in fact intended to receive the barley, but considered it “only a speculating order--a monthly option;” in other words, a mere bet or wager on the price of barley at a future day. This, in substance, is the defendant's version of the matter.

The evidence given on the part of the plaintiff tends to prove quite a different transaction. According to that testimony the defendant came to the plaintiff's office about the twentieth of October, and gave an order to buy for him 15,000 bushels of barley, to be delivered in November. Thereupon the plaintiff purchased for the defendant this quantity of barley, and paid for it. There is no dispute about the amount of margins advanced by the defendant. The purchase was actually made, and the barley was all delivered by the sellers. The plaintiff had the barley ready for delivery to the defendant on the contract in November. The defendant, however, was not ready to receive it then, but ordered the plaintiff “to carry” it through the month of December. The plaintiff did so, and continued “to carry” the barley, or the most of it, for the defendant...