Grant, J.
(after stating the facts). The case comes squarely within Gregory v. Wendell, 40 Mich. 432" court="Mich." date_filed="1879-04-08" href="https://app.midpage.ai/document/gregory-v-wendell-7929303?utm_source=webapp" opinion_id="7929303">40 Mich. 432, where contracts of this character were ably discussed by the late Justice Cooley, unless the act of 1887 (3 Comp. Laws 1897, § 11373) makes such contracts as were approved in that decision void. The statute is printed in the margin. *53Under the plaintiff’s testimony, he did not know whether defendant had 5,000 bushels of wheat to sell, and did not ask him. A party may make a binding agreement to sell that which he does not have. He may go into the market and purchase it, and he cannot defend, when called upon to perform his contract for future delivery, by saying, “ I did not have the property when I made the contract.” Commission merchants and others make such contracts, expecting to go into the market and buy. The same rule applies to his purchases. Both parties, under the testimony of plaintiff., understood that actual delivery of the property bought or sold upon these orders could be enforced. This agreement brings it without the statute. If, however, it was understood that this was a mere evasion of the statute, and neither party contemplated an actual sale or delivery, then the transaction was void, and plaintiff could not recover. Upon these points there was a conflict of testimony, which was submitted to the jury upon the theory of both sides. The jury sustained the plaintiff’s version, and there was testimony to sustain it. It is quite likely, and in fact very probable, that this was an evasion of the statute, and was so intended by the parties. But, where there is a conflict of testimony, the question becomes one for the jury, and appellate courts cannot interpose their judgment for that of a jury. Carland v. Telegraph Co., 118 Mich. 369" court="Mich." date_filed="1898-10-18" href="https://app.midpage.ai/document/carland-v-western-union-telegraph-co-7939782?utm_source=webapp" opinion_id="7939782">118 Mich. 369 (76 N. W. 762, 43 L. R. A. 280). We cannot say that this was a mere wager, based upon the rise and fall of prices. Under the defendant’s contract to sell, as stated by plaintiff, plaintiff, or his correspondent in Chicago, could have recovered damages for failure to perform the contract. So, if the seller in Chicago had declined delivery to defendant on his purchase, defendant could also have recovered damages for failure to do so. Under defendant’s testimony, the contract was contra bonos mores, and within the prohibition of the statute. It ip not enough^that defendant intended merely a speculation upon margins, — a mere wager upon the rise or fall of prices, — and no delivery. Plaintiff must also have par*54ticipated in that intention. Wagner v. Hildebrand, 187 Pa. St. 136 (41 A. 34" court="Pa." date_filed="1898-07-21" href="https://app.midpage.ai/document/wagner-v-hildebrand-6244868?utm_source=webapp" opinion_id="6244868">41 Atl. 34); In re Taylor & Co.’s Estate, 192 Pa. St. 304 (43 A. 973" court="Pa." date_filed="1899-07-19" href="https://app.midpage.ai/document/assigned-estate-of-l-h-taylor--co-6245421?utm_source=webapp" opinion_id="6245421">43 Atl. 973, 18 L. R. A. 855); Anthony v. Unangst, 174 Pa. St. 10 (34 A. 284" court="Pa." date_filed="1896-02-17" href="https://app.midpage.ai/document/anthony-v-unangst-6243524?utm_source=webapp" opinion_id="6243524">34 Atl. 284); Peters v. Grim, 149 Pa. St. 163 (24 A. 192" court="Pa." date_filed="1892-05-09" href="https://app.midpage.ai/document/peters-v-grim-6240816?utm_source=webapp" opinion_id="6240816">24 Atl. 192, 34 Am. St. Rep. 599); Counselman v. Reichart, 103 Iowa, 430" court="Iowa" date_filed="1897-10-22" href="https://app.midpage.ai/document/chas-counselman--co-v-reichart-7107958?utm_source=webapp" opinion_id="7107958">103 Iowa, 430 (72 N. W. 490); Pratt v. Boody, 55 N. J. Eq. 175 (35 Atl. 1113); Waldron v. Johnston, 86 F. 757" court="None" date_filed="1898-03-02" href="https://app.midpage.ai/document/waldron-v-johnston-8861724?utm_source=webapp" opinion_id="8861724">86 Fed. 757; Embrey v. Jemison, 131 U.S. 336" court="SCOTUS" date_filed="1889-05-13" href="https://app.midpage.ai/document/embrey-v-jemison-92547?utm_source=webapp" opinion_id="92547">131 U. S. 336 (9 Sup. Ct. 776); Whitesides v. Hunt, 97 Ind. 191" court="Ind." date_filed="1884-09-18" href="https://app.midpage.ai/document/whitesides-v-hunt-7047272?utm_source=webapp" opinion_id="7047272">97 Ind. 191.
Judgment affirmed.
The other Justices concurred.