Watte v. Wickersham
| Decision Date | 03 October 1889 |
| Citation | 27 Neb. 457,43 N.W. 259 |
| Parties | WATTE ET AL. v. WICKERSHAM ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
1. Evidence examined, and held to sustain the verdict.
2. Evidence offered on the part of the defendants that they were unable to pay for grain and pork purchased; that they were not the owners of elevators or other means of receiving or storing grain in Nebraska; and that they did not own or have possession of any grain, and particularly of the grain sold, at the time they ordered the plaintiffs to sell grain, testified to,-- held properly admitted, in connection with evidence that such facts were known to the plaintiffs at the time.Talbot & Bryan, for plaintiffs in error.
Lamb, Ricketts & Wilson, for defendants in error.
This cause was brought to this court on error from the district court of Lancaster county. The plaintiffs in error, Joseph M. Watte, Frank H. Axtell, and Finley A. Forbes, partners by the firm name of Elmendorf, Watte & Co., alleged in the court below that they had been and were doing business as general commission merchants in grain and provisions in this state and at Chicago, Ill., and that Charles A. Wickersham and Henry B. Ware, defendants, were doing business at Lincoln as partners; that the defendants had been engaged in buying and selling grain and provisions through plalntiffs as agents; that on October 12, 1886, the plaintiffs rendered their account current with defendants, by which there was due plaintiffs a balance of $1,155.06, with interest at 7 per cent., which the defendants promised to pay, but neglected and failed to do, with demand for judgment, etc. The defendants answered, denying every allegation, and for a second defense set up that the plaintiffs solicited them to embark in speculations in options in grain and pork on the Chicago market, and that, by an agreement, they put up in the hands of the plaintiffs certain sums of money as margins and guaranty to cover any decline and loss in the market value of such articles of produce as they ordered and purchased options upon; that it was agreed that they were to be liable to the plaintiffs only for the difference between the options and privileges ordered and purchased for them, and the real market value of the articles subsequently, and that the plaintiffs should hold such margins as security for any sums that might be found due them for decline and losses in the price and value of grain and produce on settlement of differences in the purchase and sale of the same on their account; that defendants never agreed to receive any produce bought, or to deliver any sold, and that all transactions by the plaintiffs on their account were speculations merely on the rise and fall of the market at the produce exchange in Chicago, and were wagers on that result and event, and were gambling transactions, superinduced by the plaintiffs for their benefit and profit, and that they ought not to recover any part thereof, because all of such contracts and option gains and losses were illegal and void. The plaintiffs replied, denying all the allegations of defendants. There was a trial to a jury, with a verdict for the defendants, and a judgment for the defendants' costs. The plaintiffs' motion for a new trial was overruled, and exceptions duly entered on the record, and a bill of exceptions settled and allowed.
The action was brought as upon an account stated, but the plaintiffs did not rely upon their evidence, which they introduced to prove the delivery of the statement of the account to the defendants, and their admission of its correctness, either by express words or by its retention without objection, or offer to return it for a sufficient length of time to raise by presumption an admission of its correctness, and a promise to pay it; but, on the contrary, virtually waived and abandoned any advantage which they may have possessed by reason of their account having been stated, and introduced witnesses, as well as documentary evidence, to prove their claim, without reference to the advantage of an account stated. In reviewing the case, therefore, I will not deem it necessary to refer to those portions of the evidence, the instructions, or the brief of counsel, which relate exclusively to the subject of account stated, but will endeavor to treat the case as the parties did, as I conceive. But here I am met by a difficulty of considerable magnitude. Was it an action for money had and received by the defendants of and from the plaintiffs, money laid out and expended by the plaintiffs for the use and benefit of the defendants, at their request, or for work and labor performed by the plaintiffs for the defendants at their request? The “Statement of Account” attached to the petition fails to aid us at all in the matter. I here copy it:
+------------------------------------------------------------------------------------+
¦Statement of Account, Chicago, Oct. 12, 1886. ¦
+------------------------------------------------------------------------------------¦
¦Messrs. Wickersham and Ware, Lincoln, Neb., in account ¦
+------------------------------------------------------------------------------------¦
¦with Elmendorf, Watte & Co. ¦
+------------------------------------------------------------------------------------¦
¦Dr. ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦Cr. ¦ ¦ ¦
+-------+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦Date. ¦Days. ¦Inter'st ¦ ¦ ¦Date.¦ ¦Days.¦Int.¦ ¦ ¦ ¦ ¦
+-------+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦Sep.¦29¦A. c. P¦.........¦......¦575 ¦ ¦Aug.¦31 ¦Bal ¦.........¦......¦156 ¦25¦
¦ ¦ ¦& S ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦
+----+--+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦ ¦30¦-- -- ¦.........¦......¦368 ¦75 ¦Sep.¦2 ¦P & ¦.........¦......¦62 ¦50¦
¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦S ¦ ¦ ¦ ¦ ¦
+----+--+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦ ¦ ¦- - ¦.........¦......¦220 ¦ ¦ ¦18 ¦Cash¦.........¦......¦250 ¦ ¦
+----+--+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦ ¦ ¦-- - ¦.........¦......¦181 ¦25 ¦ ¦23 ¦-- ¦.........¦......¦400 ¦ ¦
+----+--+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦Oct.¦2 ¦-- - ¦.........¦......¦6 ¦25 ¦ ¦ ¦Bal ¦.........¦......¦1155¦ ¦
+----+--+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦ ¦12¦-- - ¦.........¦......¦72 ¦50 ¦ ¦ ¦ ¦.........¦......¦ ¦ ¦
+----+--+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦ ¦ ¦-- - ¦.........¦......¦506 ¦25 ¦ ¦ ¦ ¦.........¦......¦ ¦ ¦
+----+--+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦ ¦ ¦-- - ¦.........¦......¦93 ¦75 ¦ ¦ ¦ ¦.........¦......¦ ¦ ¦
+----+--+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦ ¦ ¦ ¦.........¦......¦____¦_ ¦ ¦ ¦ ¦ ¦ ¦_ ¦_ ¦
+----+--+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦ ¦ ¦ ¦ ¦ ¦2023¦75 ¦ ¦ ¦ ¦ ¦ ¦2023¦75¦
+----+--+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦ ¦ ¦ ¦ ¦ ¦_ ¦_ ¦ ¦ ¦ ¦ ¦ ¦_ ¦_ ¦
+----+--+-------+---------+------+----+-----+----+-----+----+---------+------+----+--¦
¦Oct.¦11¦Balance¦ ¦ ¦1155¦00 ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦
¦ ¦ ¦..... ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦
+----+--+-------+---------+------+----+-----+----+--------------------+------+----+--¦
¦ ¦ ¦E & O E¦ ¦ ¦ ¦ ¦ ¦Exhibit A. ¦ ¦ ¦ ¦
+------------------------------------------------------------------------------------+
On the trial the plaintiffs introduced in evidence eight duplicate statements of transactions between them and defendants, with evidence that the originals were forwarded to the defendants on or about their respective dates. One of these statements I here reproduce:
Chicago, April 28, 1886.
No. 16,928. Account Purchase and Sale of 5,000 Bus. May Wheat.
For account and risk of Messrs. Wickersham and Ware.
It will be observed that in neither of these accounts is there any charge for cash paid or advanced by the plaintiffs for or on account of the defendants, nor is there any such allegation in the petition. Yet the petition does contain an allegation that “the defendants were, at the times herein mentioned, and for several months prior thereto had been, engaged in buying and selling grain and provisions through plaintiffs, as agents, and plaintiffs, from time to time, rendered statements to the...
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...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 Bank v. Oskaloosa Packing Co. 23 N. W. [Ia.], 255; Gregory v. Wattowa, 58 Ia. 711; Murray v. Ocheltree, 59 Ia. 435; Pixley ......
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