105 Neb. 170 | Neb. | 1920
Action for money had and received. Plaintiff is a farmer living near Alvo. In 1916 defendant Davis Avas managing an elevator at Alvo for Elliott Lowe, the owner of the elevator. Plaintiff alleges that he formed a partnership with Davis for the purpose of dealing in grain, and that he furnished him from time to time with money, amounting in all to about f25,000, for the purposes of the business; that Davis, without his knowledge or consent, and instead of buying actual grain, paid the money to the defendants, A, R. Roberts Commission Company, and the other defend^ ,ants, in the course of illegal and gambling transactions and speculating on margins. He alleges that he was entirely innocent and ignorant of these transactions, and that defendant Roberts, having received the money illegally, must pay it back.
The defense, in substance, is that the partnership was formed for the purpose of dealing on the board of trade in
At the close of the testimony on behalf of plaintiff, each of the defendants made a separate motion that the court direct a verdict in his favor upon the ground, among others, that the transaction was a gambling transaction, and that the plaintiff was partieeps criminis. These motions were sustained, and from a judgment dismissing the case, plaintiff appeals.
In the brief of defendants it is said: “We will assume that Hall lost money in his grain transactions, and that ,such were gambling transactions.” Counsel for plaintiff in the reply brief says: “In our brief we argued that plaintiff’s money was lost in gambling, and now having the admission of counsel that the money was so lost we are one step nearer the actual facts in the case.” And further: “The only question in the case now is whether the plaintiff participated, in this gambling or acquiesced in it if he knew about it.” We also quote from plaintiff’s brief: “Whether, the parties honestly intended to deal in grain or use the contract as a cover for bidding on the rise and fall of its price on the market is a question of fact to be determined by what the parties did in pursuance with the contract and other competent evidence.”
It must be conceded that, for the purpose of the motion, the testimony of plaintiff must be taken as true. His testimony in chief supports in the main the allegations of his petition, but his cross-examination discloses that he appears to be possessed of a “double personality,” and we must consider his whole evidence and view it in the light of common experience. In chief he testifies that Davis had been operating the elevator at Alvo for one Elliott Lowe; that he first met defendant A. R. Roberts when Davis and he went to his office in the Terminal building in Lincoln early in 1916; that they had practically formed the partnership before they went to Roberts’ office.
Upon cross-examination, however, he testified, in substance, as follows: When I bought grain at Alvo for my cattle it was a cash transaction and I usually paid the whole price within a short time. I never bought grain from the elevators and paid down three cents a bushel. I had' no place to store grain except what was ordinary on a farm, and had no interest in an elevator at that time.
In June, 1916, when I was in Roberts’ office in Lincoln, the chairs in the room were arranged about like jury chairs, arranged in a body and close together. There was a blackboard on the wall. I saw the words “corn,” “wheat,” and “oats,” on the blackboard. Andy was putting figures down. I read them because I was interested in the market. There were men in the room. I do not remember of seeing the names of any months on the blackboard, but would not say they were not there. I understood this represented the price of grain, but did not know really, did not remember, if it said Chicago, St. Louis, or Kansas City. I did not understand about the board, was looking at it to
“Q. Where did you think that 5,000 bushels of wheat was when you bought it; after you bought it, where did you think it was located? A. I did no thinking about it. Q. You did not know whether it was in the moon or in the sun? A. No, sir. Q. Or in Chicago, or in the Alvo elevator? A. No, sir; I did not. * * * Q. You knew then and you know now you did not have any place to put it, didn’t you, if they delivered it to you? A. Yes, sir. * * * Q. And you did not ask them where this wheat was, did you? A. No, sir. * * * Q. And so far as you know there never was any such wheat, was there, as far as you know? A. As far as I know. * * * Q. And you intended that money to be checked out by Davis in the name of Hall & Davis to buy wheat as you have described in the manner we have gone over, this morning, is that right? A. Yes, sir. * * * Q. In the
He also testified that before he dealt with Roberts he had dealt with Elliott Lowe; that Lowe had a board upon the wall and he sat and watched this board. It had “wheat,” “oats,” “corn,” etc., on it, and a man put figures underneath. He had one trade with Elliott Lowe; bought 5,000 bushels of corn from him and received a confirmation notice similar to those they got from Roberts; did not pay the market price it might have been three cents a bushel— never paid any more than that for corn — could not say whether he won or lost. He paid Davis money so he (Davis) could make other deals. “Q. Well, how much did you lose in your deals with Elliott Lowe? A. I should judge somewhere around $300.” He also testified that he would sit with Davis about twice a week and hear him talk ov'er the telephone to the Roberts Commission Company. Speaking of his final transaction with Roberts,
The conclusion we draiv from all the testimony is that plaintiff was not so childlike and unsophisticated as he al: leges. It is clear that the sole business in which the firm of Hall & Davis embarked was not the bona fide buying and selling of actual grain. They did not expect to receive or deliver a single bushel, and had no facilities for its storage. The transaction was purely speculative. Plaintiff was ■partieeps criminis with defendant in a gambling transaction. The case is within the rule of Rogers & Bro. v. Marriott, 59 Neb. 759, Farmers Cooperative Shipping Ass’n v. Adams Grain Co., 84 Neb. 752, Ives v. Boyce, 85 Neb, 324, Boon v. Gooch, 95 Neb. 678, and Sunderland & Saunders v. Hibbard, 97 Neb. 21, and the motion was properly sustained.
Affirmed.