Sunderland v. Hibbard
| Decision Date | 16 October 1914 |
| Docket Number | No. 17861.,17861. |
| Citation | 97 Neb. 21,149 N.W. 57 |
| Court | Nebraska Supreme Court |
| Parties | SUNDERLAND & SAUNDERS v. HIBBARD. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In an action by an agent against a principal to recover for alleged commissions and money advanced for the principal in transactions involving alleged purchases of grain on the Chicago Board of Trade for future delivery, the question is whether the intention was that the principal should become the actual buyer of grain through the agency of the commission merchants, or whether they expressly or impliedly agreed to act as the principal's agents in gambling purchases of grain which the principal had no intention of receiving.
Evidence examined, and held, that the only conclusion to be reached from the testimony is that the contract was based on a wagering transaction; that there was in fact no intention on the part of the parties to engage in bona fide purchase, to be followed by an actual delivery of the commodity in which they nominally dealt; that such transaction was a gambling venture and speculation in the fluctuation in the price of wheat in the market, and was a violation of the provisions of section 8816, Rev. St. 1913, and contrary to public policy.
In such a case the courts of this state will not aid either party to the transaction.
Appeal from District Court, Douglas County; Estelle, Judge.
Action by Sunderland & Saunders, a partnership composed of William C. Sunderland and another, against Frank B. Hibbard. From judgment for defendant, plaintiff appeals. Affirmed.
Duncan M. Vinsonhaler, of Omaha, for appellant.
George A. Magney, of Omaha, for appellee.
Action in the district court of Douglas county to recover the sum of $5,593.75, with interest thereon at the rate of 7 per cent. per annum from June 1, 1910, alleged to be due from defendant to plaintiffs for money paid and commissions earned for him by plaintiffs in dealing in wheat on the Chicago Board of Trade from the 16th day of June, 1908, to the 31st day of May, 1910. Plaintiffs' amended petition set out the several transactions in full. To this petition the defendant filed an answer, denying every allegation contained therein, except such as were specifically admitted, and as one of his defenses to the action it was alleged that on the date set forth in the petition the plaintiffs were in the commission business in Omaha, Neb., and Chicago, and during all of said time dealt and traded in what are known as options on change in Chicago and Omaha in grain and provisions by selling and putting in the market on change certain grain for future delivery, when in fact no delivery was ever intended and demanded, and no grain was bought or sold or intended to be bought or sold; that on the dates stated in said petition the defendant took an option of said plaintiffs on grain, as aforesaid, for future delivery, when in fact no delivery was ever intended or demanded, and no grain was bought or sold or intended to be bought or sold, and that the same is true in every instance, whether the defendant bought grain for future delivery or sold grain for future delivery, as stated in said petition. Defendant further alleged that all the transactions referred to in said petition were ventures and speculations on margins depending for profit or loss on the fluctuations of the market, and were purely fictitious and gambling transactions, and that in all of said transactions no consideration was received or paid, and that the amount claimed in said petition is for a pretended loss in said dealings in said options at the time stated in said petition, and is without consideration and wholly void, and in violation of the law and contrary to public policy, all of which the said plaintiff well knew. As a further defense it was alleged that it was understood and agreed between plaintiffs and defendant, in reference to all of said transactions set forth in said petition, that whenever the margins paid to the plaintiffs by defendant in said transactions were exhausted by the raising or falling of the market, the plaintiffs were to close out the deal before there should be any loss; that defendant never in any manner authorized plaintiffs to pay, or be responsible for, any sums of money whatever for the defendant. Plaintiffs filed a reply which, in substance, was a special denial of the facts alleged in defendant's answer. The cause was tried to a jury, and resulted in a verdict and judgment for the defendant, and the plaintiffs have brought the case to this court by an appeal.
On the trial plaintiffs called one M. P. Miller as a witness, who testified, in substance, that he was employed by the plaintiffs; that plaintiffs were engaged in the grain, commission, and provision business and acted as commission merchants between parties who bought or sold through them; that he had been acquainted with the defendant for five years; that the defendant had been a customer for fully three years, and that he had frequently received orders from the defendant in plaintiffs' office, either in person or by telegraph; that upon receipt of the orders plaintiffs would telegraph the same at once over their wire to Bartlett, Patten & Co., their correspondents, who would thereupon wire back that they had executed the order, and he would enter it on plaintiffs' books and notify defendant, sending him a confirmation by mail addressed to defendant at Irvington, Neb. The witness identified Exhibits 1, 2, and 11 as having been sent to Mr. Hibbard by plaintiff over the Western Union Telegraph. Exhibit 11 reads as follows:
The witness then testified that the next day after sending this telegram Mr. Hibbard called at the plaintiffs' office; that Hibbard stood by the desk of the witness watching the market reports; that the market was still going down; that witness said to defendant, “What do you wish to do?” and defendant replied, “I will go down and see Carl first [that meant his son at South Omaha]”; that defendant went down and the witness expected him to come back in the afternoon and fix the matter up; that the defendant at that time had purchased through plaintiffs 130,000 bushels of September wheat; that at the time the defendant was in the office he had told him that his margin was just about exhausted, and that plaintiffs needed more margins; that defendant did not return, and he heard nothing from him; that on the 31st day of May plaintiffs wired their Chicago correspondents to sell the 130,000 bushels of September wheat, and that their correspondents wired back that they had done so; that thereupon he mailed to defendant Exhibits 4, 5, 6, 7, 8, 9, 10, and 12; that the loss as a result of this sale was $17,087.56. Plaintiff thereupon offered in evidence Exhibits 3 to 12, inclusive, to which defendant objected as being irrelevant, immaterial, and incompetent. The objection was overruled, and the exhibits were received in evidence. A copy of one of them will be sufficient for the consideration of this appeal. Leaving out the letter head, Exhibit 10 reads as follows:
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