15 Mo. App. 480 | Mo. Ct. App. | 1884
delivered the opinion of the court.
This case was before the court at a former term (13 Mo. App. 503; 16 Cent. L. J. 431), on an appeal by the defendant, and, while sustaining the rulings of the circuit court on the other questions involved, wTe reversed the judgment because the court refused to instruct the jury that the burden was upon the plaintiff to show what the true value was of No. 2 wheat at the end of the month of August, 1880, for manufacturing or consumptive purposes. In so ruling this court used the following language: “ It appears that this (August) ‘deal’ was settled according to the ruling market at the end of that month. But this market had been forced up to a fictitious point by a combination of dealers in getting up what is called a ‘ corner.’ The evidence upon this point is not conflicting. * * * There was no evidence as to what the value of wheat at the end of August, 1880, was, either in other markets or in this market, for manufacturing or consumptive purposes. The
When the cause went back to the circuit court the defendant amended his answer, setting up therein the two rules of the Merchants’ Exchange of the city of St. Louis, upon the terms of which the ruling of this court had been based. These rules were as follows : —
“Sect. 4 — Rule 10. In case any property contracted for future delivery is not delivered at maturity of contract, the purchaser may demand a settlement at the average market value of the property on the day of maturity of contract, and in case such settlement is refused, may purchase the property on the market for account of the seller during the same or the next business day, notifying him at once of such purchase, and any loss shall be due and payable at once by the party in default. * * * Nothing in this section shall be construed as authorizing unjust or unreasonable claims based upon manipulated or fictitious markets.
“Sect. 5. In determining the average market value of any article, the committee named, or, in case'of abitration, the committee of arbitration and appeals, shall consider its
The answer then charged substantially that the deals in controversy were settled by the plaintiffs, not upon a legitimate market, as required by the above rules, but “ upon a fictitious and manipulated market, wherein a fictitious and manipulated price for No. 2 red winter wheat for August delivery was produced by manipulation and cornering, so that the quoted market price in the St. Louis market for the said wheat was far in excess of its true value.” The plaintiffs by a denial put these allegations in issue, and it was the only issue contested in the case. Everything else necessary to the recovery of the plaintiffs was either admitted by the defendant or-went to the jury without objection. The jury returned a verdict in favor of the plaintiffs for the sum of $2,650.50, the same being, with interest, the whole amount claimed by the plaintiffs, on the basis of the full quoted price of the settlements of August wheat on the day when the plaintiffs closed out the defendant’s deals because of his failure to put up more margins. It was the same verdict which was rendered on the former trial. From this verdict the plaintiffs remitted the sum of $155.50, and judgment was given for the residue, $2,,495. The grounds on which the defendant, again appealing, asks us to reverse the judgment, will be now considered.
I. The first ground is that the court erred in refusing to give the fourth instruction asked by the plaintiff as offered, and in giving in its stead the same instructions with certain additions. This instruction, as offered, was as follows: “The court instructs the jury that if you find from the testimony that the St. Louis market for August wheat, at the time of the closing out or settlement of the August
The instruction which the court gave in lieu thereof was as follows, the additions being enclosed in brackets : —
“The court instructs the jury that, if you find from the testimony that the St. Louis market for August wheat, at the time of the closing out or settlement of the August deals in controversy was cornered, that is, enhanced in price in excess of the true value [thereof for manufacturing or consumptive purposes] by speculative manipulation [so as to create a fictitious or manipulated market price], the plaintiff must establish, by a preponderance of testimony, what was the true value of the wheat at said time; that is, the price at which the wheat would have sold but for such speculative manipulation and cornering [for manufacturing or consumptive purposes].”
The court clearly committed no error - in refusing the defendant’s instruction as offered and in giving it as thus modified. By comparing the instruction as thus modified with the rules of the Merchants’ Exchange, above set out, it will appear that the only difference between the two instructions was that the latter was more complete and specific, and embraced all the elements embraced in the two rules, one of which, namely, “ the value of the wheat for manufacturing or consumptive purposes” embraced in the second rule, the instruction as offered omitted.
II. The next group of objections is that the court erred in excluding proper testimony.
1. The first of these objections relates to the testimony of Alexander H. Smith. This witness had testified, on his direct examination, that he could have purchased No. 2 red winter’wheat at the quoted price on the last day of August,
2. On cross-examination of the same witness, the following question was asked by the defendant, and ruled out under objection : “ Are you prepared to state what, in your judgment, No. 2 wheat would have sold for on the 31st of August if the market had not been oversold or had not been cornered?” We do not see that there was any error in excluding this question. It assumed what was in controversy, that the market on that day was cornered. It is true that the whole evidence does not leave much room to doubt that such was the fact, though one or two witnesses testified to the contrary. But it called for an opinion merely in respect of a matter about which the opinion of one intelligent man, having information as to the facts, is generally as good as that of another. We think it would be going to a great length of strictness to reverse a judgment because a merchant on the witness-stand was not allowed to give an opinion as to what the state of the
3. Another witness, J. B. M. Kehlor, was asked, on his cross-examination, by the defendant’s counsel, the following question, which, under objection, was excluded: “Do you know whether or not a corner was run in the month of August?” We see no error in this ruling, because it appears on the same page of the transcript, that the witness having, in answer to a question put by the defendant’s counsel, given his understanding of what a “ corner ” was, was asked and answered as follows: “Do you know whether or not any such circumstance [that is, a corner] did put up the price of wheat in this case?” A. “It is apparent to me, at that immediate time, it did;” so that the defendant got from this witness, in a more specific form, the answer which was manifestly sought to be elicited by the question excluded.
4. On cross-examination of the same witness, the following question was also put by the defendant’s counsel, and, under objection, excluded: “ Will you tell the jury now, right straight up and down — the question here is, whether this wheat, when it sold for ninety-nine cents on the 31st of August, was selling at a fictitious price? ” No exception was saved to this ruling; but if there had been, it would have been unavailing, because, on the direct examination of the same witness, the same question had been put by the plaintiffs and excluded by the court upon objection by the defendant’s counsel.
5. The files of a newspaper called the St. Louis Daily Marlcet Reporter had been used by all the plaintiff’s witnesses to refresh their recollection as to the price of wheat, based upon actual quotations on the days in controversy. Witnesses swore to the accuracy of the quotations in that publication, and the defendant’s counsel admitted their accuracy. Mr. O’Connor, the publisher of that paper, being upon the witness stand, the defendant’s counsel offered to
III. The final objection is more general. It is that “ the verdict for the full amount claimed was clearly against the evidence and the law, and can not be sustained.” We have read the record with care. The evidence tended to show that, during the month of August, 1880, the price of No. 2 red winter wheat in elevators at St. Louis, rose from about ninety cents a bushel on the first of the month, to ninety-nine cents on the last of the month. It also sufficiently appeared that there was, during the last days of the month of August, what is known in the slang of the exchange as a “ corner,” although one or two witnesses seemed to be of a different opinion. It also appeared that the ordinary difference in price between No. 2 red winter wheat and No. 3 red winter wheat on the St. Louis market, is about seven cents, but that, on the last day of August the difference had expanded to about sixteen cents. It further appeared that the 31st day of August was the last day upon which wheat which had been sold on the St. Louis exchange for “ August delivery ” could be delivered ; in other words, that those who had made such- sales were obliged, in order to keep their contracts and save their business honor, to de
On the other hand, it appeared by the testimony of several witnesses, that the quoted market price of No. 2 red winter wheat, upon the basis of which the plaintiffs closed out and settled the defendant’s deal, was the real, and not a fictitious price ; that the same wheat, that is to say, No. 2 red winter wheat, delivered in elevators at St. Louis, could not be bought on the days named for any purpose, at a lower price; that dealers had even on the last day of August bought it at the then ruling price for exportation, which means for shipment to Europe; and that millers could have bought it on that day at the ruling price, and manufactured it into flour at a small profit, though it did not appear that any millers had so purchased it.
As to the real vital question whether the price of No. 2 red winter wheat, which had, during the last days of August, been forced up some eight or nine cents beyond its natural value, had been so forced by “ manipulation,” and that it was a “fictitious market,” I must say that I can see no ground whatever for arriving at a conclusion different- from
On the whole, it appears that the case was very fairly and carefully tried, in accordance with the former ruling of this court upon the question at issue. The judgment will therefore be affirmed.