38 Mo. App. 383 | Mo. Ct. App. | 1889
delivered the opinion of the court.
This was an action to recover a balance claimed to be due on an account “for money loaned,, and money advanced and paid by plaintiff for defendant at his instance and request.” The answer set up, as an affirmative defense, that the transactions embraced in the account were gambling transactions, known in the commercial world as “dealings in options” or “futures” in cotton, pretended to be bought and sold by the plaintiff for account of the defendant; that, although the contracts of purchase and sale, made by the plaintiff with the unknown parties through whom he effected them, were regular in form, yet they were not made in good faith, but were illegal, immoral, contrary to public policy and void, because there was never any intention between the parties thereto actually to deliver any cotton thereunder, but it was intended, at the expiration of the times agreed upon, to settle in money for the differences between the prices agreed upon and the market price of that quantity of cotton at the time of the settlement; that'it was the defendant’s intention, at said times, to speculate and gamble in the rise and fall of the price of cotton, and that this intention was known to the plaintiff; that the plaintiff had no authority from defendant to enter into any other than wagering contracts in his behalf; that the contracts actually entered into by the plaintiff with the said unknown persons were wagering contracts, and illegal, immoral and void; and that any money, claimed to have been paid out by plaintiff for account of defendant, was in furtherance of said illegal and immoral purposes, and likewise void and of no binding effect. This defense was put in issue by a reply.
We, therefore, take it that the essential inquiry in this case is whether there was any evidence tending to show that the plaintiff and the defendant 'both understood that no cotton was to be delivered, but that the transactions were to be “rung out,” to use the slang of this kind of business, or to be settled by the payment of the “differences” between the market price and the agreed price.
This question is to be determined entirely upon the evidence adduced by the plaintiff. The defendant offered no evidence. The evidence, which was adduced, consisted of the testimony of the plaintiff himself; of the testimony of the plaintiff’s bookkeeper, who kept his accounts, and of the deposition, including the cross-examination, of the defendant, which deposition was put in evidence by the plaintiff. This deposition of the defendant, which the plaintiff thus made his own evidence, states, in substance, that the general nature of the transactions, which are the subject of this suit, was that of an operation in the future price of cotton; that the defendant never authorized the plaintiff actually to buy or sell cotton; but authorized him to buy “futures” in cotton for the defendant; that the plaintiff’s idea was a speculation in the future price of cotton, to be settled by the payment of the difference; that the
It is perceived that, if the evidence of the defendant was to be believed, the defendant employed the plaintiff merely to purchase “cotton futures” for him, for the purpose of speculation, and did not employ him to purchase cotton. The presumption is that the plain-1 tiff understood the terms of the employment as they were delivered. We are of the opinion that the foregoing evidence presents a case, in which a jury ought to be allowed to say whether the parties intended to engage in actual sales and purchases, or in mere gambling transactions, which were to be closed out by the settlement of the “differences” between the agreed price and the actual price at the time of settlement. The law on this subject is now pretty well settled in this state, although much difficulty arises in applying it in actual cases.
The governing principle laid down in Crawford v. Spencer, 92 Mo. 498, whioh is the last decision of the supreme court on this question, is, that both parties to the contract must intend, at the time when the contract is made, not to receive or deliver the commodity purchased or sold, but to make a settlement on the substantial basis of what would have been made or lost, having reference to the market price, if the commodity were actually received or delivered.
But in Crawford v. Spencer, 92 Mo. 498, our supreme court adopt the doctrine of the supreme court of the United States in Irwin v. Williar, 110 U. S. 499, which that court expressed in the following language : “ It is certainly true, that a broker might negotiate such a contract, without being privy to the illegal intent of the parties to it, which renders it void, and, in such a case, being innocent of any violation of the law, and not
In this case the supreme court dealt with the subject as chancellors, and decided the question upon their opinion of the facts disclosed by the evidence, and held that the contracts were mere wagers and unlawful. A state of evidence that would justify such a decision by a court of equity would, of course, take the question to the jury in a court of law. We do not perceive any essential difference between the facts of the case as stated in Crawford v. Spencer, and the facts of the case before us. In both cases the intent of the principal and his broker was that the principal employed the broker merely to aid him in speculating* in the future value- of- a commodity, without any intention that there should be an actual delivery. The following observations, which the supreme court made upon the facts of the case, are equally pertinent to the evidence in this case. ‘ ‘It is an undisputed fact in the case that not a grain of wheat or corn was ever delivered under the contracts in question. They were' all closed out and settled by the adjustment of differences, and in all cases before the maturity of the contracts. That they were all mere speculations is not denied. The plaintiff made, and intended to make, no arrangement for the delivery or reception of any of the grain, and this was, at all times, well known to the brokers. * * * If we look to the bare assertion of the parties, on one side and the other, we might well conclude that the plaintiff had failed to make out a case; but if we look to the attending circumstances, which we must do, we can but conclude
It must also be borne in mind that the decision in Crawford v. Spencer, supra, is moreover authority to the point, that the question is not to be judged by the bare assertion of the parties on the one side or the other, but that the attending circumstances must also be looked to. In addition to the statements of the defendant in his deposition, the fact, that no cotton was ever delivered or tendered to the defendant by the plaintiff in execution of any of these transactions, is certainly a material circumstance which the defendant was entitled to have submitted to the jury, together with his evidence, as bearing upon the question of the validity of the sales. This case seems to be more clearly a case where the question of intention of the parties to the contract, with reference to its validity, should be submitted to the jury, than was the case of Ream v. Hamilton, 15 Mo. App. 577, where this court held that it was a question for the jury. Indeed, if it was not a question for the jury in this case, I can hardly conceive of a case where it would be a question for the jury, unless in a case where the intent of the parties, which taints the contract under the rule above stated, were actually expressed in writing.
In this case, the plaintiff and defendant were dealing face to face here in St. Louis, and it, therefore,
Then, as -to the.instructions presenting this defense to the jury, we will say that we understand that the following instructions express the law as laid down in Crawford v. Spencer, 92 Mo. 498, and properly apply the law to the hypothesis of fact presented by the evidence in. this case, and we are, therefore, of opinion that the court erred in refusing to give them:
“3. The court instructs the jury that, if they believe from all the facts and circumstances in evidence in this case, that the defendant, W. V. Johnson, employed the plaintiff, Ewing Hill, to buy cotton futures, and thereby speculate in the future price of cotton, and that under the contracts, which plaintiff may have actually made with third parties in filling such orders, no cotton was intended actually to be received .or delivered by the parties to such contracts, but that it was the intention of said parties merely to settle for the differences in price, then plaintiff cannot recover in this action-, and the jury will find for defendant.
“4. The court instructs the jury that if they believe from the evidence, that, at the time defendant. instructed plaintiff to buy cotton futures for him, it was mutually agreed or understood between them that no*394 cotton was to be delivered or received in the settlement of such purchases, but they were to be settled by the payment of differences, then plaintiff is not entitled to recover and you will find for defendant.”
As it may become material upon another trial, we suggest that neither the plaintiff’s book of accounts, nor any copy drawn from such book, is competent evidence for the purpose of showing the amount due by the defendant to the plaintiff, upon any theory which obtains in this state or elsewhere; for the reason that this book was not a book of original entries, that the bookkeeper, who kept the book and whose testimony was introduced in support of it, did not make the entries from original transactions within his own knowledge, but made them from accounts sales, transmitted by the plaintiff’s New York correspondents to the plaintiff. The book was therefore not evidence, and no testimony concerning the entries therein should be received on another trial.
But we must further observe that, if the plaintiff or his-bookkeeper drew up a statement of the plaintiff’s account with the defendant, striking a balance, whether such statement was drawn from this book, or from whatever source, and presented this statement to the defendant, and he either assented to its correctness or did not object to it, or, being furnished with it, retained it for a considerable time without objection, in either of these cases the statement so furnished will be evidence to charge the defendant on the theory of his having admitted its correctness, and in the last case, (of his having retained it without objection for an unreasonable time), on the well-known rule relating to stated accounts. Kent v. Highleyman, 17 Mo. App. 9, and cases cited.
For the errors pointed out the judgment will be reversed and the cause remanded.