BANGS 'IJ. HORNICK.
of stopping over at Grant's Pass, and finishing the journey on , the next day's train, on tpe payment of the extra charge of $1.79.' He £laW proper to avail himself oftbis privilege, and thereby became indebted to the defendant accordingly. And whether, the plaintiff allowed his baggage to be carried through on the first train, or kept it with him, the defendant had a lien on it for all the unpaid charges for transportation which the plaintiff incurred during the journey. There was but one contract for the transportation oithe plaintiff, including his baggage, which was modified or alteredj.in the course of its performance, by his . own act or omission. Suppose there werefirflt and second-class carriages on this road, and on July 13th the plaintiff paid fol' tl;nd took pat'sage in one of the,latter for ,but" arriving at Pass, he got into one of the former, and rode toAshland; refusing to pay the additional fare when demaI;lded, can there be any doubt that the defendant would have a lien on,his baggage for the same, and might, iihe had or got possession of it, retain it until sueh fare was paid? Certainly not. Substantially, this is the parallel of the plaintiff's case. The defendant was clearly in the right in detaining thev'alise until the fare was paid,. and the plaintiff was as clearly in the wrong in attempting to take it without doing so. . his conduct throughout this transaction looks very much like he wall playing a game to involve the defendant in a ]/lowsuit out of which might make some money. The motion for a new trial is disallowed.
«(Jircuit Oourt, D. Minnesota. February 21, 1887.)
PROMISSORY NOTES-CONSIDERATION-SPECULATING IN "FUTURES. It
In an action· on a promissory note, defendant pleaded that the note was' given for a stock-gambling debt and was void. It appeared that he ordered the purchase and sale of stocks through a Chicago broker; that he did not inten4 an actual purchase ,or sale, but only to speculate on ,I). future rise or falL It did not appear, however, that a 'purchase and sale were not in fact made by the broker. The court, upon this evidence. peremptorily instructed the jury!o find for appe""red that there "!as a gambling intent OD one inde only, and It IS well settled that where such Intent exists only on one side, the other party intends an actual purchase or sale then the transaction is valid; and from the intent and belief of one party'it is not fair to presume a like intent or belief as to the other. 1
SAME-DEFENSES-RIGHTS OF TmRD PARTIES.
A broker claimed a balance to be due him by A. on account of certain stock transaction.s, which sum B., a third party, assumed to pay; A. afterwards .executed hIS note to B. for the amount, held, that A. could not afterwards repudiate the note on the ground that the balance claimed by the broker was due on a gambling transaction which was void.
1 As to the validity of contracts for dealing in futures. See Beadles v. McElrath, (Ky.) lB. W. Rell. 152, and note.
a.PRINCIPAL AND AGENT-PR'EBmlPTION THAT AGENT FOLLOWED INSTRUCTIONS.
The law will presume aJlagent obeyed the instructions giveu him and as they were given; and, if contrary be alleged, it must be proved.
Monoh for' a New Trial. '
BREWER, J. This was an action, on a promissory note. Defendant pleaded it was void because' given fora gambling debt. I instructed the Jury tha.t the' defense' was not made out. A verdict was thereupon returned for thepIaintiff;: The principal question, therefore, whether the testimony' shows the consideration of the note. was 8. gambling 'transaction; 'Or,perhaps more correctly, whether it left a doubtfulquestioh of the Jury alone were authorized to decide; 'The defendant was the principal witness in his own behalf,a'youngntan Ofgreat candor, andbnewho, though largely interested in the result, made no effort to conceal or distort anything, ,and most unquestionably stated the facta as he knew them, and only those that he ' knew; and, ifTcould see 'anypossibleway to do so, it would give me great to relieve him from the burden ofthis judgment. .The ofactSare these: In '!'881;the defendant, then living in Chicago" thought' to ,make money specula.tinginstocks, and employed the firm of Lester & Co., brokers in'that city, to bUy and sell for him. Whenev-er hewisbed to buy, he left orders with them 'to make the purchase, depositing a Sum varying from 3 to 10 per cent. as a margin; and, when-, ever he wished to sell, he similal'l<y:instructed them to sell. If by the transaction a profit was made, his account was credited with that amount, less the commission; and, if loss resulted, it was in like manner debited therewith. He never received' any certificates of stock, never saw any, and did not of his own knowledge know whether any were ever bought or sold. The deposition of one of the firm, was read in behalf of the plaintiff, and he testified that, upon receipt of instructions to buy or sell, the satllewere telegraphed by his firm to their agents in New York. city, and, so far as he knew, were complied with by their agentsipthe;8.<:tual purchase Defendal1t insists that this whole deposition, shoUld have been excluded, because. ·of the failure of the witnessiO' answer 'certain questions. Assume tha,tto be correct, and it leaves simply testimony of defendant that' he ordered the purchasellOd sale of stocks,andthat he does-not know whether there were purchases 'or sales. Outside of the depositions there is not the first 8l;intillaof as to whatw.as iIl fact done or intended to be done by Lester &Co. ,Now, it is doubtless true that where there is in fact no purchase or sale of stocks, aha none intended by both parties, but simply the rise is a gambling a wllger one, and, cannot be upheld; but it is equally true and well settled that "here intent exists on mtends an actual tll-en the transactIOll IS valId,., There is no gambling unless both sides gamble; and from the intent or beliel" of,the one' party it is not fair,to presume a like intent or belief on the ()ther. Bartlett v. Smith, 13 Fed. Rep. 263; -Kirkp;atrick v. Adams,
.20Fed .. Irwin v. Willi4r., 110 U. S.,507, 4 Snp. Ct. Rep. 160., So it amounts to this: If the deposition of Lester was properly fide was proven; if 'it was improperly adll).itted, there is no testimony to show any wrong on. the part of Lester & Co., and the law does not presume a wrong. Counsel for defendant say that it is the absolute duty of the court to denounce this transaction, unless it clearly appears that it was a valid and honest one. I think the duty of the court is precisely' the reverse, and that it is the , duty of the court to it, 'UDless it appears that it was an and dishonest one. The ,defendant has given his note. The law presumes that there was a consideration, and an honest one,and unless he has shown, the contrary he $hould abide by the contract he has made. Further, this is not a case where defendant,as principal on the one side, was dealing with Lester & Co. as principal on the other. There was no contract of purchase or sale, real or pretended, between them. They were simply brokers,-agents to do his bidding in transactions, real or pretended, elsewhere. There is no presumption that an agent does not obey the instructions given, or that he does not intend to obey them; and, it matters not what the intent or suppositi9n of the principal maybe, the law will presume that the agent obeyed the instructions that were given and as they were given; and, iithe contrary be alleged, it must be proved. Bartlett v. Smith, 13 Fed. Rep. 263; Kirlcpatrick v. Adam8, 20 Fed. Rep. 287. . And,stillfurther, the present plaintiff was not a member of the firm of Lester & Co. at the time of these transactions. For some reason he assumed the payment to Lester & Co. of the amount claimed by them, to be due' from' the defendant. He not only assumed, he in fact paid it. Knowledge of this was brought to the defendant, and thereupon he gave a note to the plaintiff, of which the one in suit is a renewal. Now, if A. pays to B. a debt which B. claims is owing from C., and C., being made aware of this payment, gives his note for the amount to A., can he thereafter repUdiate that note on the ground that he did not in fact owe B. anything? Beyond any doubt in my mind, the verdict was right, and must be sustained.
TAYLOR v. FLECKENSTEIN and another.
(Oircuit Oourt, D. Oregon. February 21,1887.)
CONTRACT TO PAY THE DEBT 011' ANOTHER-RELEA$E 011' DEBTOR Il'ROM ARREST.
, B., being under arrest· in a civil action, the defendants, at his request, and .without any demand from or communication with the officer having him in custody, executed a writing under seal for his discharge, in whic'h they underother things. that, in case a judgment lJassed against B., and he failed to satIsfy the same, they': WOJlld;' in consideratlOn of which the plainti1'f directed him to be discharged, which was done. Afterwards judgment was