Atwater v. Manville

106 Wis. 64 | Wis. | 1900

WiNslow, J.

There is sufficient evidence to support the finding of the trial court to the effect that a partnership was formed between the parties on or about March 1, 1891; therefore we shall not spend any time upon that question, but proceed at once to the question whether the evidence supports the conclusion that such partnership was formed for the purpose of transacting a legitimate business.

The legal principles applicable to board-of-trade transactions are well settled. Contracts in form for the sale and purchase of commodities, where neither party intends to deliver or accept the property nominally sold, but where it is intended by both parties that the transaction shall be settled by the payment of differences in price according to the rise and fall of the market, are gambling contracts, and void. Lowry v. Dillman, 59 Wis. 197; Wall v. Schneider, 59 Wis. 352; Laws of 1883, ch. 81; Stats. 1898, sec. 2319a; Jamieson v. Wallace, 167 Ill. 388.

The doctrine is elementary that an action will not lie for the purpose of obtaining a division of the profits, or enforcing contribution for the losses, bf a partnership formed to conduct, and which has actually conducted, an illegal business. Bates, Partnership, § 119. If, therefore, this partnership was formed for the purpose on the part of both parties of carrying on a gambling business on the board of trade, and the losses shown resulted from the transaction of such gambling business, there can be no recovery. It is true that the plaintiff testified that delivery was contemplated in all of the transactions. We are satisfied, however, that the evidence shows beyond a peradventure that nothing was contemplated, either in the partnership agreement or in the trades themselves, save settlements of differences. All the circumstances point that way. The plaintiff had some means,— perhaps $100,000,— and the defendant had nothing save a salary of $100 a month. The firm started with no capital stock, and no books were ever kept. Between March and July it had more than 300 different transactions with commission firms, in which in the neighborhood of 8,000,000 bushels of wheat, 80,000 bushels of corn, 355,000 bushels of oats, 1,000,000 pounds of ribs, and $19,500 worth of lard were either bought or sold, involving millions of dollars; but there was never delivered, or offered to be delivered, a bushel of grain, or a pound of lard, or a solitary rib, but in every case the transactions were settled by the payment of differences. Such facts have been uniformly held by the courts as stamping upon the transactions the character of gambling contracts. Jamieson v. Wallace, supra; Beveridge v. Hewitt, 8 Ill. App. 467; Wheeler v. McDermid, 36 Ill. App. 179; Flagg v. Baldwin, 38 N. J. Eq. 219. That the parties contemplated just such transactions as these when their partnership was formed, we entertain no doubt, from the evidence. It would not be useful to rehearse the facts at any greater length. They all point one way. The parties contemplated gambling in prices, and nothing else. They did just what they contemplated. The law will help neither party, but leave them where it finds them.

By the Goivrt.— Judgment reversed, and action remanded with directions to enter judgment dismissing the complaint.