37 Neb. 766 | Neb. | 1893
March 1, 1889, appellant was a grain dealer in Nebraska and appellees were commission merchants in Chicago, Illinois. These parties entered into a written contract bearing said date, in words and figures as follows:
“This agreement, made this first day of March, 1889, by and between Wanzer & Co., of Chicago, Illinois, of the first part, and J. C. Morrissey, of Lincoln, Nebraska, of the second part, witnesseth as follows: Wanzer & Co. agree to loan to said 'Morrissey a sum not exceeding thirty thousand dollars, to be used in the purchase of corn and .other grain, seeds, etc., in the state of Nebraska; the rate of interest on the same to be seven per cent per annum, to be charged monthly as said Morrissey’s indebtedness 'may appear. Said Morrissey agrees to give his promissory ¡.notes at thirty, sixty, and ninety days, to be renewed from
“■Beside such sums of moneys as are above provided for, Wanzer & Co. agree to pay drafts attached to negotiable bills of lading to nearly the value of the property so represented.
“Said Wanzer & Co. agree.to report daily all sales of property for account of said Morrissey, and to furnish him with such information as he may request concerning such sales, and to make all returns as promptly as possible. Said Morrissey further agrees to pay interest on all sums Wanzer & Co. may deposit as margins on transactions made in his behalf, and said Wanzer & Co. shall notify said Morrissey of the deposit of said margins.
“ This contract shall be terminated on the first day of March, 1890, Wanzer & Co. reserving the right to terminate the same by giving thirty days’ written notice; and on the termination of this contract, either by such notice or at the expiration of the time herein agreed, said Wanzer & Co. shall be entitled to collect from said Morrissey a sum equal to one-half the charges said Wanzer & Co. would receive on the grain said Morrissey shall then have on hand, according to the afore-named rates in this contract.
“J. C. Morrissey.
“Wanzer & Co.”
Under thiscontract appellees advanced appellant $19,750, for which appellant gave his notes secured by warehouse or crib receipts on grain stored in his elevators in Nebraska. In January, 1890, appellees held a note of appellant for $2,000, dated March 15, 1889, due sixty days after date, on which there were due and unpaid $1,230 and some in
a. A general denial of the averments of the cross-petition.
b. That the crib receipts sought to be foreclosed had been satisfied by grain shipped and money remitted by the appellant to appellees according to the terms of said contract, and that the grain so shipped was grain purchased with the money borrowed by the appellant of the appellees, and the money remitted was proceeds derived from the sale of the grain ■ purchased with the money borrowed of the appellees, and that appellant had no grain in his possession covered by said warehouse receipts.
e. That the appellant was financially responsible, and therefore appellees had a complete and adequate remedy at law, and that the court was without equitable jurisdiction.
d. That the contract between the parties and the notes executed in pursuance thereof were usurious.
being a gambling contract.”
/. A counter-claim that appellant was induced to sign the “contract with the belief and the understanding and agreement that the same should continue in force for one year from its date, and with the understanding and agreement then had, and with the understanding and agreement subsequently had, with the defendants that said contract should continue in force one year from its date; * * *
and the plaintiff avers that notwithstanding said clause authorizing said forfeiture of said contract at the option of the defendants on thirty days’ notice was in said contract at the date of its execution, yet it was then agreed and understood by and between the plaintiff and defendants that said clause should have no force and effect; * * *
that the plaintiff continued to do business with the defendants until about the 18th of November, 1889, when the said defendants, arbitrarily, unjustly, and without any good cause or reason, notified the said plaintiff that said contract would be forfeited on or about the 20th day of December, 1889; * * * and by reason of the notice
of said defendants that said contract was terminated, and their refusal to carry it into effect and advance said money» for one year, as understood and agreed between the plaintiff and defendants, and by reason of the defendants’ recall of all the moneys advanced and loaned, said plaintiff was damaged in his business and credit and put to great expense in the sum of $10,000.”
The prayer of this answer was that the cross-petition of the appellees might be dismissed, and the appellant might have such other relief as in equity and good conscience the court might find him entitled.
There was a trial to the court, who found all the issues in favor of the appellees, but found that appellant had sold and shipped the identical grain covered by the crib receipts, and the court rendered a personal judgment against the appellant for the amount due on the note.
When the issues were complete appellant moved the court to transfer the case to the law docket and impanel a jury for the trial of the case. This motion the court overruled. When the trial was. about to begin appellant again moved the court for a jury trial on the issues of the facts involved in the case. This motion the court overruled. The overruling of these motions is the first complaint made ’ by the appellant here. Whether this ruling of the court was correct depends upon the nature of the issues made by the pleadings and the character of the relief demanded.
- The cross-petition alleged the making and delivery by the appellant to appellees of a note and certain warehouse receipts on grain in his elevators to secure the payment of the note; that the note was past due and unpaid. Appellees’ prayer was for a foreclosure of the liens on the grain, and a decree for its sale to pay the amount due on the note.
The answer admitted the execution of the notes and securities, but alleged that the liens or crib receipts had been discharged; that ihe note was usurious; that the contract, out of which the subject-matter of the claim in the cross-petition grew, was void, being a gambling contract; that said contract as written was not as agreed and understood by the parties, and there was a prayer for a reformation of. it.
The cross-petition demanded equitable relief only. It invoked the equity powers of the court, and the issues made by the cross-petition, the answer of the appellant thereto, and the reply of the appellees were entirely equitable; but appellant also alleged by way of counter-claim in his an
Did this counter-claim of the appellant for damages oust the court of its equitable jurisdiction? Is a defendant to a purely equitable suit entitled as a matter of right and law to a jury for the trial of an issue of law which he has voluntarily brought into the case? We think not. The appellant had a right, if he was so minded, to file his counter-claim for damages in this equity suit. It was an independent cause of action existing in his favor and against appellees, but appellant’s cause of action on his counter-claim was not lost to him or barred had he left it out of this suit.
The action as made by the appellees in their cross-petition was one purely of equitable cognizance; but part of the relief demanded by the appellant could only be granted by a court of equity. The familiar principle is that when a court of equity acquires jurisdiction over a cause for any purpose, it may retain the cause for all purposes, and proceed to a final determination of all the matters put at issue in the case. (1 Pomeroy, Eq. Juris., sec. 181, and cases there cited.)
In Wilson v. Johnson, 74 Wis., 337, it is said: “An action to enforce a lien upon a pledge is an equitable one, triable by the court.”
In The Installment Building & Loan Co. v. Wentworth, 25 Pac. Rep., 298, the supreme court of Washington say: “As the foreclosure of a mechanic’s lien is a proceeding cognizable in a court of equity, the mere fact that the defendant in such suit interposes a counter-claim for damages, as he is allowed to do by the laws of Washington, is not sufficient to divest such court of its jurisdiction and to entitle defendant to demand a trial by jury.”
This court said in Dohle v. Omaha Foundry & Machine Co., 15 Neb., 436, that “An action to foreclose a mechanic’s lien is essentially a suit in equity, and a party is not, as a
After the evidence was in, it appeared that' the grain called for by the warehouse receipts sought to be foreclosed had beeu already disposed of by the appellant, and his counsel now contends that the court should have then impaneled a jury. But this position is untenable. The court was sitting in equity. It had before it on the pleadings an equitable action, and it did not lose its jurisdiction because the evidence disclosed that the only adequate relief it could afford was a personal judgment. (Van Rensselaer v. Van Rensselaer, 113 N. Y., 207.) The court was right in refusing the appellant a jury trial.
The contract between the appellant and appellees contained this clause: “This contract shall be terminated on the first day of March, 1890, Wanzer & Co. reserving the right to terminate the same by giving thirty days’ written notice; and on the termination of this contract, either by such notice or at the expiration of the time herein agreed, said Wanzer & Co. shall be entitled to collect from said Morrissey a sum equal to one-half the charges said Wanzer & Co. would receive on the grain said Morrissey shall then have on hand, according to the afore-named rates in this contract.” On November 18, 1889, appellees notified appellant in writing of their election to terminate said contract on December 20, 1889, and on said last date appellees terminated the contract.
The appellant’s next point is that the contract between him and the appellees was to continue in force until March 1, 1890, notwithstanding the agreement therein that the appellees might terminate it sooner. Appellant bases this contention on an agreement which he alleges existed between himself and appellees to that effect, outside of the instrument itself. The court found this issue against the appellant, and rightfully so. We cannot stop here to quote
In Ireland v. Dick, 18 Atl. Rep., 735, the supreme court of Pennsylvania say: “The appellants, in May, 1876, accepted a license from appellees for the manufacture of drilling jars and jar fillings under a certain patent. The agreement was in writing, — that is, it was a printed form, filled in as to names, dated, etc., in writing, and with the addition in writing, on the margin, of the following stipulation: ‘It is agreed by the parties of the first part that the parties of the second part (licensees) can cancel this license by giving thirty days’ notice in writing.’ * * * This portion of the instrument * * * is presumed to have
The district court found that the appellant was not entitled to recover any damages from the appellees by reason of their having terminated the contract, and that finding is the next in order of appellant’s complaints. This claim for damages is based solely on the assumption that the appellees violated their contract with the appellant. But did they? The contract was terminated in accordance with its provisions. There is no evidence tending to show that it was terminated by the appellees for a sinister purpose; nor that, in exercising their right to terminate it, they acted maliciously or arbitrarily. Indeed, the evidence would support a finding that the appellant’s own violation of the contract afforded sufficient grounds for its termination by the appellees had the contract, by its terms, required the existence of such grounds as a prerequisite to the right of the appellees to terminate it. The evidence shows that the appellees, however, in no respect violated either the letter or spirit of the contract; nor has the appellant sustained any damages by reason of its termination, for which appellees can be made liable. The losses, if any suffered by the appellant in consequence of the termination of the agreement, were such only as he must have known, when he signed the contract, might ensue if it should be terminated according to its provisions.
The appellant also claims that the court’s finding, that the contract between the parties thereto was not usurious,
Finally, it is said by the appellant that the contract between him and the appellees was a gambling contract, and void. If this is so, it must appear either from the instrument itself' or from the transactions of the parties under it. The expressions in the contract which it is alleged show it a gambling contract on its face are as follows:
1. “Said Morrissey further agrees to sell through said Wanzer & Co., for future delivery in the Chicago market, corn equal to the amount of ear corn purchased with funds furnished by Wanzer & Co., which sales may be changed from month to month as may be directed by said Morrissey. For the purchase and sale of this grain said Morrissey agrees to pay Wanzer & Co. one-sixteenth of one cent per bushel per month on all corn on hand at the close of each and every month, which shall cover the charge of changing from month to month; and, if purchases and sales of this character are made in any month in excess of the amount of corn on hand, the charge of such purchase and sale, or sale and purchase, shall also be one-sixteenth of one cent per bushel.
2. “Said Morrissey further agrees to pay interest on all sums Wanzer & Co. may deposit as margins on transactions made in his behalf, and said Wanzer & Co. shall notify said Morrissey of the deposit of said margins.”
‘ The substance of the first quotation is that the appellant would sell through appellees in the Chicago market, for future delivery, as much corn as appellant purchased with the money borrowed of the appellees; in other words, it was an agreement to sell grain for future delivery. The sale of grain for delivery in the future is a valid contract. (Gregory v. Wendell, 39 Mich., 337.) “If a party has prop
The substance of the second quotation is that the appellant agreed to pay interest on all sums of money appellees might advance for him as margins on transactions in his behalf. What transactions? Gambling transactions? We do not think such is a fair construction of the language of this instrument. Where a contract is capable of two constructions, the one making it valid and the other void,
Q. (By the court.) What do you mean by <c selling for future delivery” ?
A. I will explain that to your honor. We in the grain business build cribs and elevators for the purpose of getting storage out of our grain. We buy the grain from the farmer in November and December and January, during the winter months, when there are good storage charges. The winter storage is generally about four cents from December until May. * * * Now, when a man takes and fills a crib up in November he has money to pay for-.it — he has money to pay for it in the bank, and he don’t ship it out but puts it in the crib, and fills the cribs up; and as he fills the crib he wires a commission house in Chicago: “Sell 5,000 bushels March delivery against my actual corn in crib.”
Q,. Then he actually intends to deliver that corn?
A. Yes, sir.
Q,. Is that a gambling contract?
A. That is not a gambling contract when you sell corn in crib for future delivery, when you have the actual corn.
Q,. Was there anything of that kind in this contract between you and Wanzer & Co.?
A. I don’t think there was any gambling any different from selling against the corn which was being held in cribs.
Q,. Anything in the contract?
A. Not on my part, any other intention than that I went into this contract for to get the storage charges. I had money enough to run this business. The object was to put the corn in store, and get the winter storage on it; * * * that was the inducement for going into that contract.
The record also shows that the appellant, from time to time, sold for future delivery as much grain as he had on hand, and when the time arrived to make delivery, instead of shipping the grain he had in the cribs, he would buy grain on the market to fill or offset the sales made, and re
The case of Douglas v. Smith, 74 Ia., 468, is one in which the facts were substantially the same as in the case at bar, and that court said: “Where country grain buyers had a large quantity of corn in cribs, and they made sales from time to time through Chicago commission merchants for future delivery of No. 2 corn, but fearing that their corn would not grade No. 2, and hoping that it would improve with age, they bought in and resold, intending to deliver the corn to cover their sales, held, that the transactions'were not illegal so as to defeat their brokers in the collections of margins advanced for them.”
The facts in this case bring the transactions of the parties within the operation of the decisions of the ease last above cited. The preponderance of the testimony establishes the fact that the sales made by the appellant were not wagers but that the grain was to be actually delivered at the time agreed upon. The decree of the district court is right and the same is in all things
Affirmed.