Rountree v. Smith

• Decision Date: 16 April 1883
• Citation: 108 U.S. 269,27 L.Ed. 722,2 S.Ct. 630
• Parties: ROUNTREE v. SMITH and another
• Court: U.S. Supreme Court

108 U.S. 269

2 S.Ct. 630

27 L.Ed. 722

ROUNTREE v. SMITH and another.

April 16, 1883.

[Syllabus from pages 269-270 intentionally omitted]

[Statement of Case from page 270-274 intentionally omitted] W. E. Carter, for plaintiff in error

C. B. Lawrence and Francis H. Kales, for defendants in error.

MILLER, J.

Smith and Lightner, plaintiffs in the circuit court, recovered against Rountree, plaintiff in error, a judgment for $5,614.46 for services rendered and money advanced by them, as brokers and members of the board of trade of Chicago, for Rountree at his request. The case was tried before a jury, the parties being the principal, if not the only, witnesses, and their testimony, with some correspondence by letters and telegrams, was all the evidence. The record presents but two questions necessary to be decided.

It was alleged by the defendant that on the eleventh of March, 1879, he had notified the plaintiffs in writing that thereafter he would advance them no more margins, and would not be responsible for any losses on contracts made by them in his name. To which their answer was a denial of such instruction, and an allegation that, if it had been given, it was subsequently withdrawn and waived by other instructions and actions of defendant. Specific questions on this subject were submitted by the court to the jury, under the practice allowed by the Wisconsin statute. Some objection is made to the form of some of these questions, which we do not think necessary to consider here, for the fourth question and the answer of the jury to it render the other questions and answers immaterial. That question and answer is as follows:

'Fourth. If you find there was such a contract or understanding between the parties as is mentioned in the last question, did the defendant, by his subsequent acts, declarations, directions, or conduct, waive the same and become liable for further losses incurred over and above the money so placed in plaintiff's hands? Answer. Yes.'

It was undoubtedly competent for defendant to withdraw, waive, or countermand his former order on this subject, and this could be done verbally or by actions and need not be in writing, and the fact found by the jury that he did so renders his former notice wholly immaterial to the issue. The counsel for defendant resisted recovery against him, on the ground that the sales and purchases made for him by plaintiffs were gambling contracts on the prices of the various articles of produce to which they related, never designed to be actually performed by delivery, but the damages were to be adjusted, and payments made and accepted, according to the difference between the contract price and market price at the date fixed for delivery. And on this subject he asked certain instructions of the court which were refused. The court also charged the jury that there was...