Morrissey v. Broomal

• Decision Date: 04 October 1893
• Docket Number: 5125
• Parties: JOHN C. MORRISSEY, APPELLANT, v. GEORGE BROOMAL ET AL., APPELLEES
• Court: Nebraska Supreme Court

56 N.W. 383

37 Neb. 766

JOHN C. MORRISSEY, APPELLANT, v. GEORGE BROOMAL ET AL., APPELLEES

No. 5125

Supreme Court of Nebraska

October 4, 1893

APPEAL from the district court of Lancaster county. Heard below before HALL, J.

AFFIRMED.

G. M Lambertson, for appellant:

The court erred in overruling the motion to transfer the case to the law docket and impanel a jury for the trial of the same and erred in refusing to impanel a jury in the equity court to try the issues of fact. (Code, secs. 100, 101, 280, 281; Dale v. Hunneman, 12 Neb. 225; Lamaster v Scofield, 5 Neb. 149; Betts v. Sims, 25 Neb. 184; Dohle v. Omaha Foundry, 15 Neb. 437; Davis v. Morris, 36 N.Y. 572; Ladd v. James, 10 Ohio St. 438; Keller v. Wenzell, 23 Ohio St. 579; Greason v. Keteltas, 17 N.Y. 499.) The contract is non-forfeitable under the thirty-day clause. The party claiming forfeiture must show complete readiness to perform. (Post v. Garrow, 18 Neb. 687; Nebraska City v. Nebraska City Hydraulic Gas Light & Coke Co., 9 Neb. 343; 2 Kent's Com., p. 555; People v. Gosper, 3 Neb. 285; Barton v. Fitzgerald, 15 East [Eng.] 541; Merrill v. Gore, 29 Me. 346; Newlean v. Olson, 22 Neb. 719; Jones, Chattel Mortgages, sec. 430; Anderson v. Holmes, 14 S. Car., 162.) When commissions are exacted for money advanced, aggregating, with the interest charged, a greater rate than the rate allowed by law, there being no other service rendered than the loan of the money, the contract stipulating for such commission and all notes given in payment of sums advanced under such contract are usurious and illegal. (Brown v. Vredenburgh, 43 N.Y. 295; Merchants Exchange Nat. Bank v. Commercial Warehouse Co., 49 N.Y. 640; Olmstead v. New England Mortgage Security Co., 11 Neb. 493; New England Mortgage Security Co. v. Hendrickson, 13 Neb. 157; Rosa v. Doggett, 8 Neb. 48; Richards v. Kountze, 4 Neb. 205; Stark v. Sperry, 40 Am. Rep. [Tenn.] 47; Chester v. Apperson, 4 Heisk. [Tenn.] 639; Fanning v. Dunham, 9 Am. Dec. [N.Y.] 283; Harman v. Lehman, 5 So. Rep. [Ala.] 203; Cleveland v. Loder, 7 Paige Ch. [N.Y.] 557; Tyler, Usury, p. 327; Palmer v. Baker, 1 Maule & S [Eng.] 56; Grubb v. Brooke, 47 Pa. 485; Large v. Passmore, 5 S. & R. [Pa.] 51; French v. Baron, 2 Atk. [Eng.] 120; Brakely v. Tuttle, 3 W.Va. 87.) The contract entered into between Wanzer & Co. and J. C. Morrissey, and the notes executed for the payment of moneys advanced under said contract are gambling contracts, and are illegal and void. (Rudolph v. Winters, 7 Neb. 126; Pickering v. Cease, 79 Ill. 328; Embrey v. Jennison, 131 U.S. 336; Mohr v. Meisen, 49 N.W. 862 [Minn.]; Irwin v. Williar, 110 U.S. 499; Sprague v. Warren, 26 Neb. 326; Watte v. Wickersham, 27 Neb. 457; Fareira v. Gabell, 89 Pa. 89; Lyon v. Culbertson, 83 Ill. 33; Roundtree v. Smith, 108 U.S. 269; Bigelow v. Benedict, 70 N.Y. 202; Hentz v. Jewell, 20 F. 592; Union Nat. Bank v. Carr, 15 F. 438; Irwin v. Williar, 4 S.Ct. 160; Waugh v. Beck, 6 A. [Pa.] 923; Beadles v. McElrath, 3 S.W. [Ky.] 152; Cobb v. Prell, 15 F. 774; Barnard v. Backhaus, 9 N.W. [Wis.] 595; Fisher v. Bridges, 3 El. & Bl. [Eng.] 641; Griffith v. Sears, 112 Pa. 523; Flagg v. Baldwin, 38 N.J. Eq., 218; Loury v. Dillman, 59 Wis. 197; Melchert v. American Union Telegraph Co., 3 McCrary [U.S.] 521; Bishop, Contracts, sec. 535; Oldershaw v. Knowles, 101 Ill. 117; Samuels v. Oliver, 130 Ill. 84; Sampson v. Shaw, 101 Mass. 145; Raymond v. Leavitt, 46 Mich. 447; 2 Parsons, Contracts, p. 747; Nellis v. Clark, 20 Wend. [N.Y.] 24; Perkins v. Savage, 15 Wend. 412; People v. Fisher, 14 Wend. 9; Dixon v. Olmstead, 9 Vt. 310; Ball v. Gilbert, 12 Met. [Mass.] 397; Wheeler v. Russell, 17 Mass. 258; Hooker v. De Palos, 28 Ohio St. 251; Greenhood, Public Policy, p. 642; Wright v. Crabbs, 78 Ind. 487; Shaffnerr v. Pinchback, 133 Ill. 410; Cappell v. Hall, 7 Wall. [U.S.] 558.)

Lamb, Ricketts & Wilson, contra:

It is discretionary with the trial court to call to its aid a jury on issues of fact in an equity cause. (Wilson v. Riddle, 8 S.Ct. 255; Fishburne v. Furguson's Heirs, 4 S.E. [Va.] 575; De Witt v. Barly, 17 N.Y. 350.) A defendant, in an equity case, who voluntarily pleads a counter-claim involving legal issues is not thereby entitled to a jury trial as a matter of right. (Installment Building & Loan Co. v. Wentworth, 25 P. 298 [Wash.]; Ryman v. Lynch, 41 N.W. 320 [Iowa]; Gormley v. Clark, 134 U.S. 338; Martin v. Martin, 24 P. 418 [Kan.]; Wilson v. Johnson, 43 N.W. 148 [Wis.]; Espenhain v. Steinkirchner, 43 N.W. 158; Dohle v. Omaha Foundry & Machine Co., 15 Neb. 437.) Right to jury trial on issue raised by counter-claim in equity suits is not guarantied by constitution. (Chapman v. Robertson, 6 Paige Ch. [N.Y.] 627; Jennings v. Webster, 8 Paige Ch. 503; MacKellar v. Rogers, 17 N.E. [N.Y.] 350.) Where a court of equity once obtains jurisdiction it will retain it for the purpose of doing complete justice between the parties, although rights at law are involved. (1 Pom., Equity Jurisprudence, 181; Ryman v. Lynch, 41 N.W. 320 [Iowa]; Van Rensselaer v. Van Rensselaer, 113 N.Y. 207; Martin v. Martin, 24 P. 418 [Kan.]; Haynes v. Whitsett, 22 P. 1072 [Ore.].) If any part of the case is exclusively of equitable cognizance a jury trial will be refused. (Towns v. Smith, 16 N.E. 812 [Ind.]; Quarl v. Abbott, 1 N.E. 482.) Demand for a jury trial not confined to law issues is properly denied. (Lace v. Fixen, 38 N.W. 762 [Minn.]; Greenleaf v. Egan, 15 N.W. 254.) When the right to terminate a contract on notice is reversed in the contract it will be enforced by the courts. (Fitzgerald v. Allen, 128 Mass. 232; Ireland v. Dick, 18 A. 735 [Pa.]; Crescent Mfg. Co. v. Nelson Mfg. Co., 13 S.W. 503 [Mo.]; Fitzpatrick v. Woodruff, 96 N.Y. 561; Balen v. Mercier, 42 N.W. 667 [Mich.]; Henderson Bridge Co. v. O'Connor, 11 S.W. 18; Patrick v. Richmond & D. R. Co., 93 N.C. 422; Thayer v. Allison, 109 Ill. 180.) A contract between a commission merchant and a grain buyer for a loan of money from the former with which to buy and store grain, which provides that the latter shall sell the grain for future delivery through the former, for which a commission is paid, will not make the contract usurious, although commissions and interest reserved exceed the highest lawful rate, unless it clearly appears that the contract was a cover for a usurious transaction. (Matthews v. Coe, 70 N.Y. 242; Cockle v. Flack, 93 U.S. 344; Virginia & T. R. Co. v. Campbell, 22 Va. 438; Hollis v. Swift, 74 Ga. 595; Callaway v. Butler, 7 S.E. [Ga.] 224; White v. Guilmartin, 10 S.E. 444; Woolsey v. Jones, 4 So. Rep. [Ala.] 190; De Forest v. Strong, 8 Conn. 513; Beckwith v. Windsor Mfg. Co., 14 Conn. 594.) When the promise to pay a sum above legal interest depends upon a contingency, the contract is not usurious. (Spain v. Hamilton, 1 Wall. [U.S.] 604; Truby v. Mosgrove, 11 A. 806 [Pa.]; Philadelphia & R. R. Co. v. Stichter, 11 W. N. Cas. [Pa.] 325.) An agreement to sell grain for future delivery is not a gambling contract. (Pixley v. Boynton, 79 Ill. 351; Sanborn v. Benedict, 78 Ill. 309; White v. Barber, 123 U.S. 392; Sawyer v. Taggart, 14 Bush [Ky.] 727; Gregory v. Wendell, 39 Mich. 337; Whitesides v. Hunt, 97 Ind. 191; Irwin v. Williar, 110 U.S. 499; Bibb v. Allen, 149 U.S. 481.) This is true, though the seller has not the grain on hand but relies upon purchasing it in the open market to supply his sale. (Bibb v. Allen, 149 U.S. 481; Gregory v. Wendell, 39 Mich. 337; Clarke v. Foss, 7 Biss. [U.S.] 540; Porter v. Viets, 1 Biss. 177.) A construction consistent with the validity of a contract is preferred. (Wing v. Glick, 56 Iowa 473; Bigelow v. Benedict, 70 N.Y. 202; Story v. Solomon, 71 N.Y. 420; Clay v. Allen, 63 Miss. 426; Wharton, Contracts, sec. 337.) The burden of proof is upon him who contends that a contract was intended as a cover for wagering transactions. (Crawford v. Spencer, 4 S.W. [Mo.] 713; Dykers v. Townsend, 24 N.Y. 57; Mohr v. Miesen, 49 N.W. 862 [Minn.]; Benson v. Morgan, 26 Ill.App.Ct. 22.) The intention must be mutual and contemporaneous with the agreement to make a contract a cover for wagering transactions. (Lehman v. Feld, 37 F. 856; Irwin v. Williar, 110 U.S. 499; Gregory v. Wendell, 39 Mich. 337; Beveridge v. Hewitt, 8 Bradw. [Ill.] 467; Clarke v. Foss, 7 Biss. [U.S.] 540; Bartlett v. Smith, 13 F. 263; Gregory v. Wendell, 40 Mich. 432; Murry v. Ocheltree, 59 Iowa 435; First Nat. Bank of Lyons v. Oskaloosa Packing Co., 23 N.W. 255 [Iowa]; Kent v. Miltenberger, 13 Mo.App. 503; Melchert v. American Union Telegraph Co., 11 F. 193; Gilbert v. Gaugar, 8 Biss. [U.S.] 214; Fareira v. Gabell, 89 Pa. 89; State v. Carroll, 6 Mo.App. 263; Roundtree v. Smith, 108 U.S. 269.) The deposit of margins to protect a sale or purchase against the fluctuations of the market is no evidence of a gambling transaction. (Gruman v. Smith, 81 N.Y. 25; McGinnis v. Smythe, 4 N.E. [N.Y.] 759; Gregory v. Wendell, 39 Mich. 337.) The sale on the board of trade of grain in store, although extended from month to month, and, in fact, never delivered, is not to be construed a gambling transaction. (Douglas v. Smith, 38 N.W. 163 [Iowa].) In a contract which is not as a whole illegal and is severable, that which is legal will be sustained, while that which is illegal will be rejected. (Wharton, Contracts, sec. 338; Anderson v. Powell, 44 Iowa 20.)

OPINION

The opinion contains a statement of the case.

RAGAN, C.

March 1, 1889, appellant was a grain dealer in Nebraska and appellees were commission merchants in Chicago, Illinois. These parties entered into a written contract bearing said date, in words and figures as follows:

"This agreement, made this first day of March, 1889, by and between Wanzer & Co., of Chicago, Illinois, of the first part, and J C. Morrissey, of Lincoln, Nebraska, of the second part,...