55 Mo. App. 406 | Mo. Ct. App. | 1893
The appellants filed in the probate court for allowance a note for $500, made to them by L. C. Wilson, respondent’s intestate, on the fifteenth day of May, 1890. This claim was allowed in the probate court, from which decision the respondent administrator appealed to the circuit court, where a yerdict was rendered in his favor. The defense to the note, both in the probate and circuit courts, was that it was. given for an illegal consideration, i. e., for speculations on the differences in the market value of wheat bought and sold without any intention of delivery. The evidence tended to show that the appellants in 1890 bought
The appellants offered in evidence a printed notice (not set out in the record), which they claimed to have, as showing how their deliveries of the July wheat bought and sold by them for Mr. Wilson were made. The court excluded this form of notice from the evidence, to which exception was saved. The evidence also tended to show that, prior to his dealiings with appellants, L. Q. Wilson had speculated on ’Change; that he was a traveling salesman, earning a salary of about $4,000, the year before his-death; and that he was not connected with the milling business, and had no storehouse for the grain. The account of his transactions, as set forth on appellants’ ledger, disclosed that he paid to them $300 at the beginning of his dealings. It showed various credits to him on grain bought and sold at the date of such items. The evidence showed that no wheat was ever actually delivered to him.
First, the modification by the court of the following . instruction, prayed by appellants, by the addition thereto, against his exception, of the italicised words, to-wit:
“The jury are instructed that a sale of goods to be delivered in the future is valid, even though there is an ■option as to the time of delivery, and, although the •seller has no other means of getting the goods than to .go into the market and buy them; but if, under the guise of such a contract, valid on its face, the real purpose and intention of both parties is merely to speculate on the rise and fall in prices of such goods, and the goods are not to be delivered, but only differences paid between the contract and market price, then such a contract is a wager, and is void. But it is not enough to render the contract void that one party only intended by it a speculation in prices; it must be shown that both parties did not intend to deliver the goods, and that both contemplated and intended a settlement of ■differences in prices only.
• “Upon the foregoing exposition of the law, as .■applicable to the defense set up in this case, the jury .are instructed that, before the defense can defeat a recovery here, it has the burden of proving that both the deceased, Wilson, and also the parties from whom •and to whom he bought and sold, intended no delivery ■of the goods, and were only speculating on the rise and fall of prices, orthat.it was the wider standing between Wilson and the plaintiffs that there was to he no such delivery hut such speculation only.”
And the giving for the respondent of the following instruction:
“The court instructs the jury that, if they believe from the evidence in this case that Lewis G. Wilson, employed the plaintiffs to buy and sell grain, not*410 intending to receive or deliver the article bought or sold, but only for the purpose of speculating in the future price of such grain, and that plaintiffs were privy to such intent or purpose, and that, under the contracts which plaintiffs may have actually made with third parties in filling such orders, no grain was intended actually to be received or delivered by either of the parties to such contracts, but that it was the intention of both said parties merely to settle for the difference-in price, and that the note sued on was given in settlement of such difference in price, then plaintiff cannot recover in this action, and the jury will find for the-defendant. And the jury is also instructed that, in ascertaining the intent of the parties to the contracts or purchase and sale mentioned in the evidence in this casé, they are not limited to the assertions of parties on one side or the other, but that all the attending circumstances connected with the transaction must be-looked into.
“The court instructs the jury that, if they believe from the evidence that, at the time Lewis C. Wilson instructed plaintiffs to buy and sell the grain mentioned in evidence in this case, it was mutually agreed and understood between them that no grain was to be delivered or received in the settlement of such purchases and sales, but they were to be settled by the payment of differences, then plaintiff is not entitled to recover, and you will find for the defendant.”
Second. The exclusion by the court of the evidence offered by appellants to show the form and method of their deliveries of the July wheat, bought and sold for Wilson.
.1. Touching the .objection made by appellants to the modification of their instruction by the addition of the words in italics to-wit: “or that it 'was the understanding betioeen Wilson and the plaintiffs that there toas
II. It is urged by appellants that the evidence does not sustain the hypothesis of respondent’s instruction, “that it was mutually agreed and understood between them (appellants and Wilson) that no grain was to be delivered or received in the settlement of such purchases and sales, but that they were to be settled by the payment of differences.”
This is an action at law; it is sufficient, therefore, to sustain the finding of the jury that there should have been some substantial evidence in its support. It has been repeatedly held by the appellate courts of this state that “all the attending circumstances” of a con
Ill; Appellants insist that the court erred in excluding from the evidence a form of notice of delivery, used in the delivery of the wheat at the maturity of their contracts. This notice is, not made part of the record,, and we are not apprised of its terms or contents. We cannot, therefore, adjudge its legal effect. As we have not the paper before us, we cannot say that it tended to show what appellants did with the wheat in question, nor can we hold that the trial court erred in excluding it.
The result is that the judgment herein is affirmed.