4 N.Y.S. 498 | N.Y. Sup. Ct. | 1888
This action was to recover for commissions earned and losses sustained by the plaintiff under a contract with the defendant for the sale, in August, 1881, of 15,000 bushels of October wheat. The defense interposed was that the transaction between the -parties was in reality a wager that the price of wheat would advance before the day of delivery; that the contract in question was made with the full understanding that no wheat was to be delivered, but that the difference between the price specified and the market price at the time named for delivery should be paid by the losing to the winning party; and hence that such contract was illegal and void, under the statnte against betting and gaming.
On the trial the defendant Luther was called as a witness, and the following proceedings were had: “Question. Did you have any intention at that time to purchase any wheat or to hold any wheat? (Objected to as incompetent and immaterial by plaintiff.) The Court. What is the statute under which you are offering this evidence? There certainly is no general principle of law which would make this evidence. (The defendants thereupon offered and read the statute of the state of Illinois as set up in the answer of these defendants.) Mr. Brown. We claim that this is a wager. The Court. I do not think that is the case on anything that appears so far. Mr. Biown. We offer to show that the intent of the parties at the time they went into this contract was that no grain should be handled at all, but simply the difference. The Court. That must appear, then, by what took place between the parties. So far as appears, these parties ordered him to sell five thousand bushels on the board of trade. Mr. Brown. We have now shown by these parties that they gave no order for the purchase of grain to fill, and we propose to show by these parties that they had no intent of doing so; and we propose to show, by further evidence, that this dealing was in the name of L. S. Hammond,
From these proceedings it will be observed that the defendants offered to prove by their own evidence .that, when the contract in question was made, they had no intention of purchasing or holding wheat; and that they sought to prove that it was the intent of the parties at the time the contract was made that no grain should be delivered, but simply the difference paid. This they attempted to establish, not only by their own evidence as to their intent in that respect, but also by the course of dealing between the plaintiff and L. ■S. Hammond, in whose name the contract was made. This evidence was objected to by the plaintiff as incompetent and immaterial, the court sustained the objection, and the defendants duly excepted. The correctness of those rulings is challenged by the defendants, and presents one of the most important questions involved on this appeal. As we have already seen, the defendants assailed the validity of the contract sought to be enforced on the ground that it was a.wager, and consequently void. If, when this contract was made, the parties did not intend to sell or purchase the wheat mentioned, but simply intended that the difference should be paid according to the fluctuations in the market, then the contract was void. Bigelow v. Benedict, 70 N. Y. 202; Story v. Salomon, 71 N. Y. 420; Kingsbury v. Kirwan, 77 N. Y. 612; Yerkes v. Salomon, 11 Hun. 471; Ball v. Davis, 1 N. Y. St. Rep. 517.
While, in the absence of evidence to the contrary, an illegal intent will not be presumed, but an opposite presumption will arise, (Bigelow v. Benedict and Story v. Salomon, supra,) yet we think the defendants were entitled to prove that their intention was simply to pay differences, and not purchase wheat, (Yerkes v. Salomon, supra.) This might not have been sufficient to have sustained their defense, (Murray v. Ocheltree, 59 Iowa, 435, 13 N. W. Rep. 411,) but it was a step in that direction which they should have been permitted to take. Moreover, they also offered to prove the course of dealing between the plaintiff and the person in whose name the contract was made, and thus show circumstances which might have established or tended to •establish the fact that the same intent existed on the part of the plaintiff.