27 Ill. App. 220 | Ill. App. Ct. | 1888
The ground upon which the insufficiency of the declaration was predicated was, that the instrument set out in the respective counts thereof, was an agreement, a contract, and that it was, upon its face, a contract to give the plaintiffs the option to buy, at a future time, the shares of stock therein mentioned; and that therefore it came directly within the prohibition of Sec. 130 of the Criminal Code, which reads as follows: “Whoever contracts to have or give to himself or another the option to sell or buy at a future time any grain or other commodity, stock of any railroad or other company, or gold, or forestalls the market by spreading false rumors to influence the price of commodities therein, or comers the market, or attempts to do so, in relation to any of such commodities, shall be fined not less than §10, nor more than §1,00(1, or confined in the county jail not exceeding one year, or both; and all contracts made in violation of this section, shall.be considered gambling contracts and shall be void”
The counsel for appellants earnestly insist that the eighth count of plaintiffs’ declaration is good notwithstanding said statute; because, they say, in view of the averments in that ■count, which are to be taken as admitted by the demurrer, there was no contract, for the want of a consideration; and hence the instrument set out is to be regarded asa mere proposition, which would not be within the statute, and not having been withdrawn, would, if accepted within the time specified, become a contract from the time of acceptance and be valid. They further claim that, at all events, the averments to the effect that there was no intention to settle upon differences, saved the transaction from the denunciation of the statute.
A demurrer admits only such facts as are well pleaded. Whether those matters were well pleaded, and whether the case falls within said section of the Criminal Code, must, as it seems to us, depend upon the decision of the question whether the instrument set out is to be regarded as an agreement, a contract, or a mere proposition for a sale. If it did not amount to a contract, but was a mere proposition for one, then it was clearly not within said statute; for, to be within it, there must have been a contract to give to the defendant or to the plaintiffs the option to sell or buy at a future time the shares of stock mentioned. The question is not entirely free from difficulty, but we are inclined to the opinion that such instrument is to be regarded and taken as a contract giving to the plaintiffs the option to buy the shares of stock in question at a future time. It says: “In consideration of one dollar and other valuable considerations, receipt of which is hereby acknowledged, I hereby agree to sell to George Schneider, etc., seventeen hundred and eiglity-six shares of, etc., at $600 per share, if taken on or before the fifteenth day of December, 1885and duly signed by the defendant.
In each count it was alleged that this instrument was made by the defendant and delivered to the plaintiffs, and we are unable to perceive that, as regards that instrument, anything is wanting to constitute an agreement, a contract. It expressly recites a consideration. It does not expressly appear that such consideration moved from the plaintiffs; but it will be understood and is implied in this, as in other cases, that it moved from the parties to whom the promise was made, as in the case of the promise itself. And there the rule is, that if a party to a contract promised payment, without saying to whom, it shall be understood that he promised payment to him from whom the consideration moved. Morris v. Litchfield, 14 Ill. App. 83.
In Andrews v. Pontue, 24 Wend. 289, the court said: “The contract will then be, £I do hereby agree and bind myself to pay to Samuel Andrews the sum of one hundred dollars, whenever, and as «soon as Sheriff street shall be opened.’ Words like these standing alone, were, in Easter term, 1839, held by the Queen’s Bench, in England, to import a consideration, and were received as sufficient to sustain an action upon an account stated. Davies v. Wilkinson, 1 Jurist, Am. Ed. by Halst. & Voorh. 372. The words were, ‘I agree to pay 0. 1). 695 pounds/ (mentioning time and place for all except ninety-five pounds,) and adding, ‘the remaining ninety-five pounds to go as a set-off, etc., on a certain debt.’ The court pronounced this to be an agreement, not a promissory note; and held that the word agree, of itself imported a consideration. Lord Den-man, Oh. J., said: 1I think the promise in this ease conveyed by the words, ‘‘I agree to pay/’ imports a consideration, without doing any violence to the language.5 And the three other learned judges, Littledale, Patterson and Coleridge, expressly concurred in the remark.” In Ives v. Hazard, 4 R. I. 27, the court says: “The counsel for the respondent contend that the words of the memorandum import an offer to sell and nothing-more. We think the language imports an agreement to sell. The language is, H agree to sell / the consideration is expressed, and the time when possession is to be given is fixed by the memorandum.”
So, in the case ia band, the words import an agreement to give to the plaintiffs the choice, privilege, or option to buy in the future the shares mentioned in the memorandum, and fixes the time within which such option ^vas to be exercised. The word, ‘agree/ was,as to its legal meaning, defined in Spaulding v. Hallenbeck, 30 Barb. 299. The court said: “Agrees, eu vi termini, means that it is the agreement of both parties, both conourring on the point, whether both sign or not.” That definition is in consonance with that given in the leading case of Wain v. Walters, 5 East, 10; Barton v. McLean, 5 Hill, 256.
Regarding the instrument as a contract in writing, as we are inclined to think we should, then, by the rules of law established by the eases cited by appellee, it was not competent for plaintiffs by averment and oral proof, to alter or change the character and legal effect of that contract on the ground of want of consideration, or to transmute it into a mere -offer or proposal. And it hems, on its face, a contract precisely within the letter and spirit of the statute in question, it must suffer annihilation therefrom, without regard to the question with what intent the contract was made. It is a universal principie, that a man shall be taken to intend that which he does. Starkie on Ev., Part 4, p. 739. That was the principle which was applied in Webster v. Sturges, 7 Ill. App. 560, a ease directly in point; People v. Brooks, 1 Den. 457; Smith v. Brown, 1 Wend. 231. The rule appears to be, that in acts mala in se, the intent governs, but in"those mala prohibita, the only inquiry is, has the law been violated? Morris v. The People, 3 Den. 402, 403. In Gilbert v. Bone, 64 Ill. 524, the court said; “It is undoubtedly the general rule, that individuals charged with disobedience to penal laws can not exonerate themselves on the ground of good faith or error of judgment; and it has been held that no excuse of this.kind will avail against the peremptory words of a statute imposing a penalty. If the prohibited act has been done, the penalty must be paid. Calcraft v. Gibbs, 3 T. R. 19; Caswell v. Allen, 7 Johns. 63; Morris v. The People, 3 Den. 381, 402. It follows from the principles above announced, that the averments in the eighth count of the declaration, respecting the purpose and intention of the parties in making the contract, were immaterial, because none of the matters averred would be admissible in evidence to show that the statute had not been violated, or to relieve from the consequences of such violation. The ease is an interesting and important one. We have given it all the consideration practicable, under our circumstances, as regards the bnsi-, ness of this court. We may be radically wrong in our views, but have the consolation of knowing that our decision may be reviewed by a higher tribunal where such errors as we may have fallen, into can be corrected. The judgment will be affirmed.
Judgment affirmed.
