21 S.D. 554 | S.D. | 1908
At the trial of this action instituted by a member of a Minneapolis Chamber of Commerce to recover his brokerage commissions and money expended in connection with the purchase and sale of wheat on that market on account of and as the agent of the defendant, plaintiff obtained the judgment sought to he reversed on this appeal.
Upon competent evidence received in support of that issue and submitted to the jury by means of a special interrogatory, it was found, in addition to a general verdict for plaintiff, that the transaction was understood by the defendant to be a mere wager on the rise and fall of prices, and that he never intended to receive any grain or do anything more than to make settlement by the
By counsel for the defendant plaintiff was cross-examined, and testified in part as follows: “Q. Did vo-u ever have any wheat at all, actual wheat I mean, for Mr. Aggergaard? A. Never had any actual wheat. We had the futures. Q. That was a contract for wheat, wasn’t it? A. A contract for future delivery. Q. All of these deals that you made for Mr. Aggergaard were contracts for future delivery, weren’t they? A. Yes, sir.” As all persons knowingly participating in the execution of a gambling contract are principal offenders, and the dealers with whom the series of transactions were consumated are unknown, their intention is wholly immaterial under the pleadings and proof, and there is nothing to judicially characterize, but the contractual relation, express or implied, existing between the parties to this action. In determining this controlling question, it became necessary for the jury to look beyond mere assertions favorable to either party, and to consider all the facts and circumstances in eviderice relative to the mode of dealing between them, and this appears to have been done under instructions by the court that were characteristically lucid and comprehensive. To defeat a recovery in an ac;ion of this character, it is only necessary to show to the satisfaction of the jury that neither party to- the contract
It appears from the record that plaintiff served ample and timeiy notice on the defendant to produce at the trial all letters, telegrams, statements of account, and reports of purchases and sales received by him from plaintiff pertaining to' the various transactions set forth in the complaint, and, to> avoid the necesity of taking the deposition of the superintendent of the AVestern Union Telegraph Company, it was stipulated before the trial commenced that, if present, that officer would testify that telegrams delivered to his company for transmission during the year 1901 had been destroyed. In view of the foregoing stipulation and the notice' which was not complied with, it was not erroneous to override an objection to plaintiff’s offer to introduce in evidence certain telegrams ordering him to purchase or sell on the defendant’s account a specified amount of wheat for future delivery. As a supplement to the foundation thus laid for the introduction of secondary evidence, it was shown that these telegrams addressed to plaintiff and purporting to have been signed and sent by the defendant from Irene, South Dakota, were duly delivered on the floor of the Minneapolis exchange by a representative of the Western Union Telegraph Company, and that plaintiff immediately transacted the business just as directed, and reported the fact to defendant. Plaintiff had also testified that as a member of the Chamber of Commerce, he was engaged in buying and selling grain for others on commission, and that he had conducted several transactions of that character for the defendant during the year 1901.
After the introduction of unchallenged evidence to the effect that plaintiff was and for nearly seven years had been constantly engaged in buying and selling wheat on commission in conformity with the rules and regulations of the Chamber of Commerce, of which he was a member, and that immediately upon receipt of defendant’s telegraphic order of August 14, 190T, to buy 50,000 bushels of wheat for December delivery, he went from the floor of the exchange to the pit, where all such business is transacted, and executed such order in a manner fully detailed, he was interrogated as follows: “Q. Now, you may explain to the court and jury it the method that you have described in this case is the method pursued and was at that time by members of the Chamber of Commerce in buying and selling grain for future delivery'-. This question is objected to as leading and calling for conclusion and for the further reason that, whatever may be the custom or method of business of the Board of Exchange or Chamber of Commerce, it is not binding on this defendant at all, until it is shown that he had knowledge of it. The objection is overruled. The defendant excepts. A. It is.” Now, by failing to give any instructions to the contrary, defendant impliedly authorized plaintiff to buy and sell wheat for future delivery in accordance with the established rules and usages of the trade at the place where the business was to be transacted; and without any testimony relative to the point the presumption would prevail that he acted in conformity with such rules and usages just as all other brokers are required to do in the execution of similar orders.
With reference to that important issue, the facts and circumstances were such as to require the submission of the case ho the jury, and the motion to direct a verdict in favor of the defendant was therefore properly overruled. Our view of the law, as herein expressed, is decisive of every point urged for a reversal, and a careful examination of the entire record discloses no error, either in the admission or rejection of evidence or in the court’s charge to the jury. The judgment appealed from is affirmed.