Stewart v. Dodson

• Citation: 118 N.E. 405,282 Ill. 192
• Decision Date: 06 February 1918
• Docket Number: No. 11493.,11493.
• Parties: STEWART v. DODSON.
• Court: Supreme Court of Illinois

282 Ill. 192

118 N.E. 405

STEWART

v.DODSON.

No. 11493.

Supreme Court of Illinois.

Dec. 19, 1917.

Rehearing Denied Feb. 6, 1918.

Error to Appellate Court, First District, on Appeal from Circuit Court, Cook County; Richard S. Tuthill, Judge.

Action by George R. Stewart against William E. Dodson. To review a judgment of the Appellate Court, reversing a judgment for plaintiff, he brings certiorari. Judgment of Appellate Court reversed, and of circuit court affirmed.

George W. Wilbur, of Chicago, for plaintiff in error.

Buell & Abbey, of Chicago, for defendant in error.

COOKE, J.

Plaintiff in error, George R. Stewart, secured a judgment in the circuit court of Cook county against William E. Dodson, defendant in error, for $1,800. On appeal to the Appellate Court for the First District, the judgment of the circuit court was reversed, without remanding, and the record of the Appellate Court has been brought here for review by certiorari.

The original declaration consisted of a special count and the common counts. The special court charged: That on March 8, 1913, the defendant in error entered into a written contract with the plaintiff in error in the words and figures following:

‘The agreement, made and entered into this 8th day of March, 1913, by and between George R. Stewart, of the city of Chicago, county of Cook, and state of Illinois, party of the first part, and William E. Dodson, of the city of Chicago, county of Cook, and state of Illinois, party of the second part, witnesseth:

‘Whereas, that said party of the first part has heretofore purchased from the said party of the second part 200 shares of the capital stock of the National Machine Recorder Company; and whereas, the said party of the first part may be desirous of selling and disposing of the said 200 shares of stock:

‘Now, therefore, it is mutually agreed between the parties hereto, each with the other, that if the said party of the first part be desirous of selling and disposing of the said 200 shares of stock one year from the date hereof at $9 per share, and upon notice in writing of such desire thirty days prior to the expiration of this contract to the party of the second part, the said party of the second part will one year from the date hereof purchase the said stock at the said price of $9 per share. But said party of the second part shall have the right, at any time on or before one year from the date hereof, upon written notice by him and tender of the sum of $1,800, to purchase said 200 shares, and should said party of the first part then be unwilling or refuse to sell the same, this contract shall thereupon terminate and be void without any further liability or obligation against either party hereto. Time being of the essence of this contract.

‘In witness whereof we have hereunto set our hands and seals the day and year first above written.

George R. Stewart. [Seal.]

‘William E. Dodson. [Seal.]’

That on February 2, 1914, plaintiff in error notified defendant in error, in writing, of his election to sell and dispose of the shares of stock mentioned in the contract to defendant in error for the sum of $1,800, but that defendant in error refused to comply with the terms of the agreement above set forth. In the special count plaintiff in error offers to surrender to defendant in error the certificates of stock upon the payment to him of the sum of $1,800. To this declaration defendant in error interposed the plea of the general issue, and filed an affidavit of merits, denying the service of notice and tender of the stock, and asserting the intender of the agreement. The special count was amended. The amendment set up the circumstances under which it is alleged plaintiff in error purchased the shares of stock from defendant in error and the controversy which arose between them, resulting from charges of fraud and misrepresentation, and the fact that the contract sued on was made in a settlement of the controversy. After pleas had been filed to the declaration as amended, and demurrers to the same had been sustained, plaintiff in error secured leave to strike the amendment to the declaration, leaving the declaration as originally filed. Upon motion the court struck the affidavit of merits filed by defendant in error, and rendered judgment against defendant in error as by default for $1,800.

The Appellate Court was of the opinion that the agreement of March 8, 1913, was a gambling contract and in violation of section 130 of the Criminal Code, and for that reason the judgment of the circuit court was reversed without remanding the cause. In its opinion the Appellate Court relies upon Schneider v. Turner, 130 Ill. 28, 22 N. E. 497,6 L. R. A. 164, and in his contention here defendant in error relies almost wholly upon that case to sustain the judgment of the Appellate Court.

Section 130 of the Criminal Code, as in force at the time of the making of the contract of March 8, 1913, provided that:

‘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, * * * shall be fined * * * and all contracts made in violation of this section shall be considered gambling contracts, and shall be void.’

It is the contention of defendant in error that the contract in question is an option contract and comes within the provisions of this section of the statute. Plaintiff in error does not contend it is not an option contract but contends only that it does not fall within the provisions of the statute.

We had before us in Schneider v. Turner, supra, a contract very similar to the one here under consideration. We there held that this section of the Criminal Code was not intended to make unlawful merely such option contracts as contemplate a settlement by differences, or, in other words, merely gambling contracts, as such contracts were illegal and void before such section was ever enacted; that the statute goes much further, and makes all contracts of option to buy or sell at a future time any...