| Ill. App. Ct. | May 4, 1881
This case has been ably and exhaustively argued, both orally and in print, by the counsel for the respective parties, and, after full consideration of all the objections to the verdict of the jury and rulings of the court below, urged on behalf of appellant, we are satisfied, that the judgment is right and ought not to be disturbed.
The rule of law is indisputable, that if a bill be payable to A or A’s order, the acceptor or drawee is bound to ascertain that the person presenting it is the one entitled to receive payment. -And if he be deceived, and make payment to one not entitled to receive it, the real owner of the bill may recover its amount again from such acceptor, drawee or banker. 2 Parsons on Notes and Bills, 596.
In Chapin et al. v. Dake, 57 Ills. 295, the court held that where the payee of two certain drafts, having lost §1,500 at gaming, indorsed these drafts over to the winner, such contract of indorsement was void under our statute against gaming, and the property in the drafts still remained in the payee, in whose favor they had been drawn ; and that, although after such illegal act of indorsement, the drafts passed into the hands of an innocent holder for value, still the legal consequences, that is, of the indorsement being void, must be the same in the hands of a bona fide holder, and no more effect could be given to it than to a forged indorsement. Under the first mentioned legal proposition, it follows that if Spaids, the appellee, in whose favor as payee the hill of exchange in question was drawn and made expressly payable, had casually lost such bill, or it had been stolen from his possession, and his name forged on the back of it, the property in the bill would, nevertheless, remain in him ; and if appellant had paid it to a holder under such forged indorsement, Spaids being the real owner, could recover of appellant the amount of the bill notwithstanding such payment.
So, also, under the doctrine -of Chapin v. Dake, supra, if Spaids had engaged in a gambling transaction in grain with Doxey, and such transactions was gambling within section 130 of the Criminal Code, then if the bill was indorsed by Spaids and delivered to Doxey as and for a stake in such gambling transaction and thereby lost, such indorsement was void under the statute, and of no more effect than a forged indorsement.
Whether this rule should obtain to the same extent as in the case of an actual forgery, as affecting the remedy here for a wrongful payment to Doxey, it is not material to inquire, because the evidence tends to show that appellee gave appellant before such payment due notice of the way in which Doxey acquired such indorsement and possession of the bill, and not to pay it to him.
On the trial the court left it to the jury to find from the evidence whether'under the contract of Spaids for the sale of wheat, it was intended by the parties to deliver and receive any wheat, and whether or not the contract was a mere device to carry out a wager on the market value of wheat, or was a bona fide sale of actual wheat for future delivery; and directed the jury in substance, that if they found from the evidence that it was not the intention of the parties to such contract to deliver and receive any wheat, and the contract was a mere device to carry out a wager on the market value of the wheat, and was not a bona fide sale of actual wheat for future delivery, then it was illegal and void; and that then if the jury believed from the evidence that the draft in question was indorsed and delivered to Doxey on such wager contract, and for no other consideration, and the defendant had notice of such facts before payment of such draft, but afterwards paid the same to Doxev, the jury should find for the plaintiff.
There was evidence tending to support each of the several hypotheses of the instruction, and we are of opinion it was right, and a proper submission of the whole case to the jury. The law applicable to nearly every aspect of these gambling transactions, is fully discussed, and our views expressed in an opinion this day filed in the case of Beveridge et al. v. Hewitt et al., and it is unnecessary to re-state those views in this case.
We are of opinion also that the evidence of facts and circumstances attending the transaction in question, the custom and practices of the so-called Chicago Grain and Provision Exchange, when considered in connection with the form of the papers used, were sufficient to warrant the jury in finding that the whole concern, with its appointments, customs and practices, was but an ingenious device for carrying on a most ^pernicious system of gambling under the guise of a business establishment for the purposes of legitimate trade and commerce. It is true, this so-called Exchange had a charter from the legislature of the State, but that in no respects purports to authorize gambling, nor can it be invoked as a shield to pretended officers and agents of the corporation if they carry on gambling in produce in the so-called Exchange instead of legitimate dealing, or affect the legal consequences of their acts. It is true that the name The Chicago. Grain and Provision Exchange, imports an institution for legitimate commerce. So did that of the old Stock Exchange of London, but its members and patrons became so addicted to gambling in stocks, that Parliament had to interfere for its repression, as our legislature did in enacting section 130 of the Criminal Code. It is likewise true that the place of operations of this so-called Grain and Provision Exchange is eligibly located in the vicinity of the Chicago Board of Trade, and the latter has kindly afforded it some facilities for carrying on its illegal practices by means of a telegraphic connection.
But this latter circumstance will hardly suffice to rebut the' inference that gambling was habitually done in the exchange, if the facts and circumstances in evidence justify that inference, and we think they do, and so the jury have found. We have not space to give to the enumeration of all those facts and circumstances tending to that conclusion. There was a total absence in the exchange of warehouse receipts, samples of commodities, and of all the concomitants of actual commerce. The manner of the transactions was unusual and not such as would be adopted in actual commerce; that is, the use of blanks - uniform as to terms and the kind of grain. These are filled up by the customer, and then with the customary rate of margins put through a hole in a window, where somebody receives them without colloquium. The deals are always for future delivery. Then the manner in which the fate of the margins is fixed, by quotations of market prices posted on the black board from time to time, and the celerity with which from their very nature, such deals are closed out. Of great significance in showing the true character of this concern, and its pernicious tendencies, is the advertisement of it by its managers to the public. It is headed: “The Chicago Grain and Provision Exchange, 122 and 124 Clark street, Chicago, Ill. Chas. T. Doxey, President and Treasurer; N. C. Murry, Secretary. Incorporated under the laws of the State of Illinois. Capital, §100,000. Commission Merchants and Brokers in grain, provisions and stocks.” It. then notifies the public that they buy and sell for customers in small lots, and on margins to suit. Grain in 1,000 bushels and over; pork and lard in 25 packages and over, etc. The lowest margins received on grain 1 cent per bushel, etc. “ Customers may margin as much more as they please, and put up additional margin at any time before trade is exhausted. Customers are not liable for more than the margin put up. Profits unlimited. Smaller orders have the same facilities and advantages.”
This means gambling and gambling only, upon the face of it; and was obviously designed to draw in those who can raise but small sums to hazard. Then in addition to all these facts and circumstances, the very form of the papers employed in the transactions, is in perfect harmony with the theory of their being mere gambling transactions, and repels the idea of any intention on the part of any body concerned in them, to actually deliver on the one hand or receive and pay for any actual grain on the other. Appellee entered into, July 1 & 2, 1880, thirteen sale-deals, eight of which were for July delivery, and five for August delivery, at his option. For margins he put up sixty-five dollars in money, his gold watch and chain, and the bill of exchange in question for three hundred and fifty dollars, payable to his order and indorsed and delivered it to Doxey. He filled out and signed on his part the usual blanks, but according to his testimony the Exchange or Doxey entered into no undertaking to buy. In conformity with the practice, then, appellee stipulated (for thus all the blanks are) that if he did not without notice keep good his margin above the market price, as per quotations posted from time to time on the black-board in said Exchange, then the latter might, without notice, sell the wheat for his account, or cancel the contract at any time and if his margins should at any time be entirely exhausted, the contract should from thence forth be inoperative and void.
Appellee testified that he had no grain, and didn’t expect to have any; that what he put up he intended to hazard upon the fluctuation of the market price of wheat. And if such was not the intention of the Exchange or Doxey, why was the contract required to be in that form? For, by it, if such fluctuations as appeared by the quotations on the blackboard, were against appellee so that the differences in market price brought appellee’s margins one dollar below the standard of what was termed good, the Exchange or Doxey had the absolute right, without notice to appellee, to cancel- the contract.
Then, as to the other clause: let us for a moment look at its effect. Suppose that appellee’s margins stood the vicissitudes of the market throughout July 2, the day when the last of his contracts were made, but during the morning of July third, the unstable thing fluctuated against him so that for a moment or an hour his margins were entirely exhausted; but suppose, in the afternoon of the same day, there was a reverse current — the fluctuation was the other way, and by the test at the close of the day appellee’s margins were good again, and the market went further in his favor, so that the deal was against the exchange during the rest of the month, during all which appellee had the option to deliver. How, what was his position under the contract? Why, by its very terms, the circumstance that on the morning of July. 3d the market had gone against him so as for a moment, or an hour, the differences exhausted his margins as a mathematical result, the contract became thereby inoperative and void. So that, although at the close of the same day, a change in the market had rendered his margins good, and from thence during the month, the deal was decidedly against the Exchange, still appellee, if he had desired to do so, could not have put himself in readiness and offered to deliver the grain to the Exchange, and on refusal to receive and pay for it, maintain any action for damages. His stake was lost the moment the differences exhausted his margins, no matter what afterwards was the state of the market. According to the doctrine of the Supreme Court in Lyon & Culbertson, 83 Ills. 33, it was a gambling contract on the face of it. We have spent more time on this case than it deserved; we think the verdict was right, and see no substantial error in giving or refusing instructions. The judgment will therefore be affirmed.
Affirmed.