Rogers v. Marriott
| Decision Date | 07 March 1900 |
| Docket Number | 9,140 |
| Citation | 82 N.W. 21,59 Neb. 759 |
| Parties | H. W. ROGERS & BROTHER v. JOHN T. MARRIOTT |
| Court | Nebraska Supreme Court |
ERROR from the district court of Dixon county. Tried below before EVANS, J. Affirmed.
AFFIRMED.
O. E Martin, for plaintiff in error:
Was the evidence sufficient to make a prima facie case in favor of the plaintiffs on the issues joined? The board of trade of Chicago was a voluntary corporation, organized under state charter, its members being business men interested in handling grain and provisions. The members handled ninety-nine per cent of the grain that came to the Chicago market. Among the purposes and objects of the board of trade were the following: To establish values for commercial articles therein dealt in, and to find and distribute commercial information and to secure for its members benefits by co-operation in their pursuit of the grain business. See deposition, p. 22. There prevails among the members of the board of trade a universal custom with regard to the putting up of margins in the hands of commission merchants by non-members of the board, who buy or sell property through members of the board. The custom is well known and absolute. Everybody is expected to put up a margin, which consists of a certain amount of money to protect a contract to the extent of the money deposited as such margin against a rise or fall in the market. See deposition, 19. Persons who dealt in a market were presumed to know of and deal with reference to the customs of the market. See Bailey v. Bensley, 87 Ill. 556, and authorities cited on p. 559; Cothran v. Ellis 107 Ill. 413.
Contracts made in good faith for the future delivery of grain or other commodity, at some time in the future, were not prohibited either by the common law or the statute. See Wolcott v Heath, 78 Ill. 433; Pixley v. Boynton, 79 Ill. 351; Logan v. Musick, 81 Ill. 415. In the last case cited the examination showed, as the correspondence showed in this case, that actual grain was purchased and it showed it no more conclusively than was the fact shown in the case at bar. To the same effect was Irwin v. Williar, 110 U.S. 499, in which numerous cases were cited from the leading states of our Union. They were all to the same effect, that contracts for the purchase or sale of grain or other commodities to be delivered in the future, if bona fide, were valid and would be enforced by the courts.
When the defendant failed to put up margins in accordance with the custom of the board of trade, as repeatedly promised by him, the plaintiffs had the right, under the rules of the board of trade, to sell the grain purchased for the defendant, at the market price, and hold the defendant for the loss. See Moeller v. McLagan, 60 Ill. 317.
John B. Barnes, M. D. Tyler and Alfred E. Barnes, contra:
Throughout the whole history of the pretended transactions no money was ever demanded for anything except as margins. There was no pretense of demanding it for anything else. No grain was transferred. No warehouse receipt for any grain was ever given or received by any one. In fact the whole transaction was conclusively shown to be a speculation on the rise and fall of the price of wheat on the board of trade. This was, therefore, a gambling contract and void as against public policy. See Sprague v. Warren, 26 Neb. 326; Watte v. Wickersham, 27 Neb. 457; First Nat. Bank v. Oskaloosa Packing Co. 23 N. W. [Ia.], 255; Gregory v. Wattowa, 58 Ia. 711; Murray v. Ocheltree, 59 Ia. 435; Pixley v. Boynton, 79 Ill. 351; Logan v. Musick, 81 Ill. 415; Corbett v. Underwood, 83 Ill. 324; Bigelow v. Benedict, 70 N.Y. 202.
The plaintiff's own evidence brought this case clearly within the rule established in the above cases, and the judgment must be affirmed. The cases cited by counsel for the plaintiff were not in point. An examination of them showed that there was in all of them an actual sale of grain, actually existing and stored in warehouses, for which warehouse receipts were given and accepted.
As ground for recovery the plaintiffs in their petition state, in substance, that the defendant is indebted to them in the sum of $ 1,446.25 on account of the purchase at the request of the defendant of 20,000 bushels of wheat on the market in Chicago, Illinois, and a subsequent sale thereof made on defendant's account at a less price per bushel. The amount sued for was the difference in the buying and selling price less $ 222.50, which defendant had to his credit with plaintiff, the whole or a part thereof growing out of prior transactions in the wheat pit on the Chicago board of trade.
The defendant, answering, in substance, alleged that the plaintiffs were commission merchants in Chicago and dealt and traded in what are known as options on 'change, by buying and selling in market on 'change for future delivery, when, in fact, no delivery was ever made or intended or demanded, and no grain was bought or sold or intended to be; that the whole transaction was a venture and speculation on margins depending for profits or loss on fluctuations of the market, and a purely fictitious and gambling transaction, without consideration; that the account sued upon is claimed for loss in so trading in options, was without consideration, wholly void, as plaintiffs well knew, and in violation of law and contrary to public policy. From the foregoing a clear conception is gained of the issues involved and upon which the case went to trial.
Upon the submission of plaintiffs' evidence, the defendant moved the court to instruct the jury to return a verdict for the defendant upon the ground, among others, "that the testimony of the plaintiffs introduced in this case fails to make out a case or support a judgment in their favor, but on the contrary shows beyond all question that the transaction upon which the suit is brought and upon which such testimony is based was a dealing in margins on the board of trade in the city of Chicago, and is a gambling contract and absolutely void, and is against public policy." The motion was sustained, and the jury peremptorily instructed to return a verdict in favor of the defendant, which was done, and a judgment in his favor rendered on the verdict. From this judgment plaintiffs prosecute error proceedings in this court.
While some other questions are presented by the record, as we view the case, it is proper, and necessary only, to notice the ruling of the trial judge on defendant's motion to peremptorily instruct the jury to return a verdict in his favor, and we shall therefore confine our consideration of the case to the one question mentioned. It is for us to determine only whether, under the evidence, the peremptory instruction given was justified, or, in other words, whether the evidence introduced by plaintiffs would sustain a verdict if rendered in their favor.
The only evidence submitted was in the form of depositions, and consisted of the testimony of one of the plaintiffs, including the telegraphic and written correspondence which passed between the parties to the action and relating to the transactions out of which the suit grew, and the testimony of one other witness, a member of the board of trade, who testified to certain customs thereon prevailing and the meaning of certain words used on the board of trade, such as "options," a "put" or a "call."
In the deposition of the plaintiff, after identifying a series of letters and telegrams passing between the parties and testifying in relation to them, the witness was asked to state how he arrived at the amount due, to which he replied:
Other questions to, and answers by, this witness were as follows:
To continue reading
Request your trial