188 Iowa 1047 | Iowa | 1919
Lead Opinion
“Sec. 4967. It shall be unlawful for any person, corporation, association or society to keep within the state any store, office or other place for the pretended buying or selling of grain, pork, lard, or any mercantile, mining or agricultural products or corporation stocks, on margins, without any intention of future delivery, whether such pretended contracts are to be performed within or without the state; and no person, corporation, association or society within the state shall make or enter into any contract or pretended contract, such as is above stated and referred to; the intention of this section being to prevent and pro-
“Sec. 4975-d. That a bucket shop, within the meaning of this act, is defined to be an office, store or other place wherein the proprietor or keeper thereof, or other person or agent, either in his or its own behalf, or as the agent or correspondent of any other person, corporation, association or co-partnership within or without the state, conducts the 'business of making or offering to make, contracts, agreements, trades or transactions respecting the purchase or sale, or. purchase and sale, of any stocks, grain, provisions, cotton, or other commodity, or personal property wherein both parties thereto, or. said proprietor or keeper, contemplate or intend that such contracts, agreements, trades or transactions shall be, or may be closed, adjusted or settled according to, or upon the basis of, the public market quotations of prices made on any board of trade or exchange, upon which the commodities or securities referred to in such contracts, agreements, trades or transactions are dealt in by competitive buying and selling, and without a bona-fide transaction on such board of trade or exchange; or wherein both parties, or such keeper or proprietor shall contemplate or intend that such contracts, agreements, trades or transactions shall be, or may be, deemed closed or terminated when the public market quotations of prices made on such board of trade, or exchange, for the articles or ffecurities named in such contracts, agreements, trades or transactions, shall reach a certain figure; and also any office, store or other place where the
Instruction No. 5, given by the court, contained the following:
“To make such transactions illegal, it is not sufficient to show that one of the parties to such transaction had no intention of delivering the grain sold, and that such party expected and intended only settlement thereof by paying or receiving the difference in prices, but, before such transactions will be held illegal, it must appear that both parties to said transaction mutually intended that no such future delivery thereunder would ever be made, and that the transaction was wholly upon margins and differences in prices between the time of buying or selling and the time of delivery. If you shall find from the evidence in this case that, at the time of the transactions, no future delivery
“The court erred in sustaining said motion on the ground as stated in his decision and opinion, to wit: The ground based upon the request of defendant to the court that it should instruct the jury upon the law as stated in Chapter 213 of the Laws of the Thirty-third General Assembly; also, the court should have submitted to the jury the questions: (1) As to whether or not the plaintiffs were conducting such business as was prohibited by Chapter 213, Laws of the Thirty-third General Assembly; and (2) whether or not the particular transaction involved in the case was not done in the prosecution of such business.”
The broad contention of the appellant is that the case is governed wholly by Section 4967, and that Section 4975-d
Section 4975-d does furnish a remedy against the “proprietor” or “keeper” who does not intend delivery, and this even though the customer, in good faith, expects delivery. There is no necessary inconsistency between the two sections.
It is argued for appellant that Section 4975-d did not repeal Section 4967, and that, therefore, Section 4967 stands. Let it stand. But it is further argued that the last sentence of Section 4967, unless repealed, stands in the way of the application of Section 4975-d to the case. There is nothing to be found in such sentence except a limitation of the application of Section 4967. We think it clear, therefore, that the case does involve a consideration of Section 4975-d, as well as of 4967, and that the trial court properly so held, in his consideration of the motion for a new trial.
II. It is argued that the defendant is precluded by his pleading from invoking the aid of Section 4975-d, in that his pleading was predicated wholly upon Section 4967. It is true that the defendant, in his answer, pleaded that it was not contemplated either by plaintiff or defendant that there should be any actual delivery of the commodity sold. If the evidence on behalf of the defendant satisfied the
“Defendant further objects to said instruction because and for the fact that the ^ame does not correctly state the law, in that it does not instruct the jury that, if Harper & Ward, the plaintiffs, who were the proprietors or keepers of the brokerage office wherein *the transactions involved in this controversy were made, did not intend that delivery should ever be made of the commodity sold or purchased in said
Furthermore, Instruction No. 7 contained the same vice as Instruction No. 5, in that it emphasized the fact that there must have been an absence of intention to deliver, on the part of both defendant and plaintiff. To this instruction the defendant made the following written exception:
“Defendant further objects to Instruction No. 7, given to the jury, for the reason that the same incorrectly states the law, and is confusing and misleading, and for the further reason that the instruction places upon the defendant the burden of proving that both he and the plaintiffs had no intention of receiving or delivering any grain in the transactions in controversy, such instruction being in law erroneous and incorrect, and tending to place, a greater burden on the defendant than the law actually places on them; and for such reasons, defendant excepts to the giving of said instruction.”
We see nothing wanting in these exceptions to bring specifically to the attention of the court the very point which was urged in the motion for a new trial, and which was sustained by the trial court.
“3. Defendant in his answer sets up, as a defense, the claim that the transactions concerning which this suit is brought, were what is commonly known as dealing in futures, or options, wherein it was not contemplated
“5. You are instructed that the law declares void all contracts for the purchase or sale of grain or produce where there is no intention to make actual delivery of the grain or produce. You will first determine whether or not, in the case before you, thei’e was actual, bona-fide intention to make actual delivery of the grain or produce, in the instances of the particular sales or purchases out of which the claims sued on by the plaintiff arise.
“If there was no bona-fide, actual intention to make actual delivery of the grain, then the plaintiff cannot recover, and your verdict will be for the defendant; but, if you find there was the actual, b'ona-fide purpose and intent, at the time, to make actual delivery of the grain or produce, then such transactions were valid.”
We think it was the clear right and duty of counsel for
Dissenting Opinion
(dissenting). The majority opinion indicates some trend to affirm this appeal because of defects in presentation. Considerable stress is laid on what is termed the assignments of error, and some little stress on what is “argued.” It was settled in Jahr v. Steffen, 187 Iowa 168, that the form of the assignment of error, so called, is of so little importance that review may be had when it is entirely absent. It was settled before that that whatever is the “brief point” controls on review. The brief points do make two complaints clear, or perhaps it is inore accurate to say one complaint, and a subordinate proposition under it. The complaint is it was error to grant a new trial on the ground that an instruction was erroneous, when, in truth, it was not.erroneous, and that it was also error to grant new trial, even if the instruction were erroneous, because the new trial was granted to one who had induced the alleged erroneous instruction by an offer which the court accepted. In my opinion, these propositions carry farther than their face. The brief point invokes every reason that can legitimately be suggested in support of the proposition asserted. Every legitimate reason for a statement of error cannot be and should not be set out in the assignment. I know of no rule which requires the court to refrain from advancing reasons for dealing with the brief point, and the reasoning power of the court is not circumscribed by merely the reasons that the brief states in terms. The brief point says, in terms, that it was error to grant
The wav out attempted is an assertion that the case comes within the rule that one who has met a ruling as to which he has saved his objections is not estopped to complain of that error on appeal because he later offers an instruction seeking to guide the court in applying the law it has announced. The trouble with this position is its premise. It is true that appellee did except to Instruction 5, and therein complains, as he does now, that same was erroneous. The instructions are presumed to be correct. If one is erroneous, and the record shows that, in substance, it is one offered by a party, then, to save the erroneous instruction, it is, on appeal by that party, conclusively presumed that his offer induced the erroneous instruction. It is not presumed, that the offer was made to guard the court in the application of an erroneous ruling already made against objection. That claim is, in effect, a claim that, because something occurred before the instruction was offered, such offer is not the acquiescence in the charge given which, on its face, it appears to be. He who urges such avoidance must prove its predicate: that the exceptions were overruled, and overruled before he offered the instruction. If the instruction was offered before the erroneous ruling was made, it cannot be defended because óf a ruling which did not exist at the time of the offer. In such case, the offer is not an attempt to limit the effect of an error already committed, but a conclusive admission by the of-
II. My position is that, where an instruction given is the equivalent of one offered by a party, he is estopped to claim a new trial because such instruction was given. The estoppel urged is upon the party who seeks to subject his adversary to the vicissitudes and expense of a second trial, because of something which he has done, and for which the adversary is in no way chargeable. One who has created the necessity for applying for a new trial, because
III. There is no change in statute law which makes the instruction erroneous. The older statute prohibits certain things, and has a proviso that it shall not apply to these things if either party intended, in good faith, to make actual sale and delivery. The change in statute merely prohibits some things not prohibited in flip original statute, and fails to apply the proviso of the older statute to the things forbidden by the new one. The exact effect is that the matters in the old statute are controlled by the proviso, while those in the new statute are not. The instruction given was not erroneous because it gave the benefit of the proviso to facts within it, and doing this cannot possibly be made erroneous because there are other prohibited acts to which the proviso does not apply. It seems to me that is the reason on which Lamson v. Mensen is affirmed.
IV. The majority seems to grant that the original section still stands, and takes the position that that makes no
I would reverse.