61 P. 815 | Kan. Ct. App. | 1900
The opinion of the court was delivered by
The plaintiffs in error, Denton Brothers, in 1891 were partners engaged in the grain and elevator business at Leavenworth; the defendant in error, Groves, was superintendent of the linseed oil
Denton Brothers, as plaintiffs, brought suit on the account for the recovery of the amount due, with interest. The defendant answered, denying that any rye was actually sold or purchased, or intended to be sold or purchased for delivery, and alleged that the transaction out of which the alleged indebtedness arose was simply a deal in options, a wager upon the future price of rye, and that the defendant was not legally liable to the plaintiffs thereon.
A trial was had before the court and a jury, which resulted in a verdict for the defendant and judgment against plaintiffs for costs. The plaintiffs, as plaintiffs in error, prepared their case-made and present the record to this court for review, and allege numerous errors in the proceedings of the trial court, which we will examine.
I. The plaintiffs in error complain that the defendant was permitted to badger a witness and carry the cross-examination far beyond the lawful limit. The plaintiffs in error cite two instances in proof of this contention. We have examined the record in
II. That the court erred in refusing certain instructions requested.
‘ ' (4) If either of the parties intended an actual delivery of the property, it is not void as a gambling contract, even though it resulted in settling the differences of the prices without the delivery of the grain.
“(5) The jury are instructed that the burden of showing the illegality of the contract is on the defendant.”
These instructions were refused. The court, however, instructed the jury as follows :
“(2) One has a right to sell and agree to deliver at some future time property which he does not own at the time of sale, but which he expects to go into the market and buy ; but an agreement for a sale and future delivery of grain is a gambling contract and illegal if it is the understanding or intention of both parties at the time that there is to be no actual sale, purchase, receipt or delivery of the grain at the time fixed for the delivery thereof, but only that the parties shall then settle and the purchaser receive or pay the 'difference’ between the agreed price and the market price, according as the market price is less or greater than the agreed price ; and if the jury believe from the evidence in this case that such was the intention of these parties the plaintiffs cannot recover in this case.”
And at plaintiffs’ request the court further instructed the jury as follows :
“The illegality of a contract is never presumed, but must always be proven. And in this case if you*30 find from a preponderance of the evidence that the plaintiffs have proven a valid contract with the defendant, then the burden of showing that such contract is illegal or void as against public policy devolves upon the defendant.”
. The court committed no error in refusing the instructions. The instructions given very fairly present the question sought to be presented in the instructions refused.
III. That the special findings are not supported by the evidence. The court, at plaintiffs’ request, submitted certain special findings, which were answered by the jury as follows :
“Ques. 1. Did Denton Bros, buy the actual grain in Chicago and fill their contract of 105,000 bushels of rye? Ans. No.
“Q. 2. Was it the intention of Denton Bros, to furnish the actual rye, sold for Groves, at the time the sale was made, on June 26, 1891? A. No.
"Q. 3. Did Groves tell Denton, on June 26, 1891, the day that the sale was made, that he did not intend to deliver the rye? A. No; not according to evidence.”
The special findings are supported by the evidence ; besides, there was no motion to set them aside, but on the contrary the plaintiffs accepted the special findings and moved for judgment thereon. If plaintiffs were not satisfied with the special findings they should have made a motion to set them aside.
IV. That the verdict is not sustained by the evidence. The plaintiffs in error during the months of May and June, 1891, sold for September delivery, on the board of trade at Chicago, about 105,000 bushels of rye, 5000 bushels of which was sold on account for the defendant Groves. The rye was sold at 61i cents per bushel. Within a short time there was an ad
It is not very clear from the plaintiffs’ version of the contract whether there was a real contract for the sale of rye between any of the parties. The plaintiffs in their brief say : “Denton Brothers presented this statement of loss to Groves on August 15, 1891.” In the account as kept by Denton Brothers upon their books they did not charge Groves in the first instance with the amount of the purchase of the rye, but left the matter open until in August, when they charged him with the loss on the transaction. If it was a real sale and purchase of grain, it would be reasonable to suppose that they would charge him with the amount of rye at the agreed price. It is not clear from the plaintiffs’ description of the transaction and the
An examination of the entire evidence satisfies us that the transaction was not a real bargain and sale of rye, for future delivery, but that it was a gambling contract, and that all the parties connected with it contemplated merely the settlement of differences in price, whether lower or higher.
The motion for a new trial was properly overruled. The judgment is affirmed.