Schlee v. Guckenheimer

• Citation: 54 N.E. 302,179 Ill. 593
• Parties: SCHLEE v. GUCKENHEIMER.
• Decision Date: 17 April 1899
• Court: Supreme Court of Illinois

179 Ill. 593

54 N.E. 302

SCHLEE

v.GUCKENHEIMER.¹

Supreme Court of Illinois.

April 17, 1899.

Appeal from appellate court, First district.

Action by Nicholas Schlee against Joseph Guckenheimer. From a judgment in favor of dafendant, which was affirmed by the appellate court (76 Ill. App. 681), plaintiff appeals. Reversed.

Henry T. Helm, for appellant.

PHILLIPS, J.

An action of assumpsit was brought in the superior court of Cook county by appellant against appellee. It appears that in September, 1887, appellant, being then the owner of a brewery in the city of Columbus, Ohio, and engaged in the business of operating the same, for the purpose of procuring the barley necessary to be used in the conduct of his said business, made and entered into a contract at Columbus, Ohio, with the firm of Meek & Guckenheimer (said firm being composed of the present appellee and one William J. Meek, since deceased), through their duly-authorized agent, I. Blumenthal, which contract was in the words and figures following: ‘Columbus, O., Sept. 12, 1887. Sold N. Schlee five cars of sample B. barley at 62c. a bushel, delivered Columbus, and five cars sample C barley at 57c. a bushel, delivered Columbus. Shipments October 10th and 15th. Terms, cash. After these five sample cars of each grade have been received, weighed, and examined, and found satisfactory, Mr. Schlee has the privilege to order 10,000 bushels more of each grade, same price, any time to to December 31, 1887. If the freight rate is less than 12c. a hundred any time between Chicago and Columbus, Mr. Schlee to have the benefit of same. Cars to be loaded not less than 800 bushels. I. Blumenthal, for Meek & Guckenheimer.’ The ten car loads of barley in said contract mentioned were delivered and paid for according to the terms of said contract. On the 15th of November, 1887, and again on the 26th of November, 1887, appellant notified said firm of Meek & Guckenheimer of his election to take said additional 20,000 bushels of barley,-10,000 bushels of each grade,-and requested them to furnish him with the same in accordance with the terms of said contract. This the said firm of Meek & Guckenheimer absolutely refused to do. Thereupon appellant commenced suit against said Meek & Guckenheimer for the damages he had sustained by reason of the refusal of said firm to furnish him said additional 20,000 bushels of barley pursuant to the terms of said contract. A declaration was filed on March 5, 1888, consisting of two special counts, which were simply for damages for a breach of the contract in refusing to furnish the 20,000 bushels of barley additional upon request and demand, and alleging the contract was valid in the state of Ohio. On the 24th of December, 1895, an additional count was filed in said cause, to which additional count appellee interposed a general demurrer; his co-partner, William J. Meek, having died in the meantime. This additional count averred, and the same is admitted by the demurrer, that plaintiff was the owner of a brewery in Columbus, Ohio, and engaged in operating the same and brewing beer therein; that the intent of the parties was that the said barley should actually be delivered, if ordered for the purpose of providing plaintiff with barley to conduct his brewery and business, and not the contrary; that there should not be a delivery, if there was only to be a payment of the difference in price by the party losing on the rise or fall of the market; that said contract was a legal and binding contract between the parties thereto in the state of Ohio, where the same was entered into and where the same was to be executed. To this declaration appellee demurred, assigning as special cause that the contract was in violation of section 130 of the Criminal Code of the state of Illinois, as follows: ‘Whoever contracts to have or give to himself or another the option to sell or buy, at a future time, any grain or other commodity, stock of any railroad or other company, or gold, or forestalls the market by spreading false rumors to influence the price of commodities therein, or corners the market, or attempts to do so, in relation to any of such commodities, shall be fined not less than $10 nor more than $1,000, or confined in the county jail not exceeding one year, or both; and all contracts made in violation of this section shall be considered gambling contracts, and shall be void.’ By section 131 a note given on account of any such transaction as mentioned in section 130 is void. By section 136 of the same statute it is provided that no assignment of any such note shall cut off the defense of illegality. The court sustained the demurrer, and entered a judgment against appellant for costs, dismissing his suit. On appeal to the appellate court for the First district the judgment was affirmed, and this appeal is prosecuted.

By the common law, contracts of this character are valid, as, under the common law, a contract to have or give an option to sell or buy at a future time grain or other commodity was neither voidable nor void. Schneider v. Turner, 130 Ill. 28, 22 N. E. 497. The first two special counts allege a breach of...