87 P. 158 | Or. | 1906
delivered the opinion.
3. A contention is made that the pleadings and evidence show that the transactions between plaintiff and defendant were merely dealings in futures or a gambling in differences, and that no actual purchase or sale of a commodity was contemplated, but the understanding was that a settlement was to be made on the differences in the market quotations from day to day until the deal was closed, and- therefore the transaction was illegal and void, and will not be enforced by the courts. No such facts are pleaded in the answer, nor was any request made for findings to that effect. The answer and requested findings assume and state that a sale of cotton was made by plaintiff on defendant’s account “on the New York Cotton Exchange,” and the evidence is all to the effect that the transaction was actual and bona fide. The witnesses for the plaintiff, and there was no contradiction of them, testify that the transactions between plaintiff and defendant were actual and bona fide sales of cotton on the New York Cotton Exchange; that plaintiff had a private wire from its office in Portland to its agents in Chicago, and, when an order was given it to sell or buy, it telegraphed the order to them and they executed it on the exchange, and the price of the execution was wired back to the plaintiff. It therefore appears that the purchase and sale made by the plaintiff on defendant’s account was an actual and bona fide transaction on the New York Cotton Exchange and presumably in accordance with its rules and regulations. Such transactions have been uniformly held valid and legal on their face, and not mere wagering contracts or dealing in differences, and the burden of proving that they are invalid, as a mere cover for differences, is on the party who makes the assertion, and defendant offered no evidence on that subject: Chicago Board of Trade v. Christie G. & S. Co.
There was no dispute as to the second cause of action, and plaintifE was not required to prove it. The complaint -sets out the facts constituting the cause of action and alleges a balance due it thereon of $55.45; the answer pleads, as a counterclaim thereto, that there is a balance of $89,.30 in plaintiff’s hands, of money advanced by defendant “over and above the sum of $55.45, due and owing to the plaintiff,” for which judgment is demanded, and when plaintiff commenced to offer evidence in support of its cause of action the defendant’s counsel stated: “We do not dispute that.”
There is no error in the record, and the judgment is affirmed.
Affirmed.