J!'EDERA.n: RIllPORTEB', ,
ftnarlithht 'Of iI:stlitioDliry 'enginedz,;'iit" fuiled 'to instructtbem fully, and sUbmit ,t6 them the distinct question 'to be" determined)i whether the insured' wa:l!l,futally injured while' performing an aot peculiarly embraced in the bce\ipation of a wood-chopper, and not in that ofa stationary engineet; ia'D'd fOT this reason I think that a motion fora new'trial should be 'grailWd; 8.nd it is SO ordered. Costs to abide the event'.
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et ai. ,.
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"Where grain ,brokel's,employed by: 1II dealer to buy and ,sell wheat on future delivery. wflte .tihlil dealer tlJat a cpnyract, wlJ,ich he has for can be changed to Junl! tQ wh,ich letter t,he makes no reply, ,and brokers so change "theaontract,'sending a statement.to the' jle&ler showmg such change to have been tlle .repeipt, and retention, of, the statement by the dealer without objectioll aJi1oullts'toll. 'ratitJ,patioll of the brokers' IAOtin malqng the change. ' :t. B.utIl-GAntUI(Q FI1rtrnES.· "", ' ',' ,,;' r ' ,If, In ,Clob.tr811te,for.the Sal,e otw,heat, :to be delivered in the ,fature, the parties, ' bave no intention an ac1/ual, Sll,bI:l and delivery, but intenn to settle at the time fixed for delivery merely by paying thedilference between the contract and ,aontract is a wager,and. is illegal, and advances I1lade under . ,the , tt oannot reQovered. , " , · " B. ,TO REcovER In an action"alfainst a dealer by broken' employed, by him to buy and 8811 wheat ': for made by them on hisBCCOunt, where the contracts on' their face EIre for actual sale and delivery, the burden is all defendant, if he attaclta,tbeil' lilA"ality on thegroulid that there WEIS no intention of actual de. ." ,; . . " ,'
..' ' " "I:t iUch for the de81el'. enter Into bona. Me contracts for actual sare and,dellvfIlry,'and afterwards, ,at his request, insteailJofdelivery, settle the 10S88$" a,nd, difference between ,the ,contract market, prce, EIre 'entitled 'to ,recover from the dealer the amounts so the ilealer himself ,maY lrave;had no intention to dellver'the wheat. " , "" " '".; " " ', ,' · , ' , " i '. 'ThacontrllcitiJthe!nselvesare not conclusive evidence of the intention of the par, 'ties, buttheir'int8ntiOD may be gatMredfMm all the circumstances attending the :01 Clpptraets,andthe COIldUOt ()f the parties with to them.
"S,UllI!. , " " " , " ' " , " ..
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JamesE. ;SoydandSamuel Boyd against TheoadvaD;Ces ,and .commissionsH " , 'M; Kirtfln, and, ,Q':Brien O'Brien, for plaintiffs.
/This is an action in which the plaintiffs advances'on accountof,the defeudalit,rnade 8t 'his-:requesti,iJnd,also foragreedcO'Ominissions for servicegrendered on the years 1888 and when 'this leged ·indebtedneSs' Iiacrued, ,were· brokers' and commission merchants, 1 doingbusineas in,theC,itY of "Chicago, and' connected with the ofoCommereeof that city, where:,tb.ey boqght and sold for persons who}
BOYD t1. HANSON.
employed: them. They had a branch office in the city of Minneapolis, and a manager in charge. The defendant is a merchant and wheatdealer. residing at Benson, in this state; and the alleged advances,itis claimed" were:mllde on his orders, for the sale and purchase of wheat in Chicago, for future delivery, from the Minneapolis office. The time during which these transactions occurred commenced in August, 1888, and were concluded, and the whole transaction finally closed up, in June, 1889. The plaintiffs claim that the defendant applied to the Min,neapolis office, to employ them to selland purchase wheat for fu,ture de,livery; that he inquired of the manager the commission to be charged, and was informed of the:rattl,and also told by the manager in charge that it was a good time to make some but what that term means has not heen developed by the testimony. It is claimed .on the .' part of the plaintiffs that he was informed of the fate of commission for their services; that the contracts made for him would be subject ;to,the , rulesjusBges j and regulations of the Chamber of Commerce of the city · of Chioagorand that in all cases actual wheat must be purchasedat;l,d sold,and.,tha imargins kept up, to protect them against loss. The de, fendant transacted business through the plaintiffs from. August,' 1888, until JUlla, 1889, according to the plaintiffs'eviden<laj when aU theicontracts were dosed. The defendant testifies that no particular agreeme:Q,t ; as to how the business was to 'be conducted WIilS made at the time ()fhis interview with the manager in Minneapolis, in August; but he .admits that the plaintiffs made .advances for him previously,a1')d up to Fehl1lary6,.1389;and testifies that tpeonly transactions of his open and U11· settled attbat time were a contract of40 j OOObusbElls of whea,Hof; May delivery, and6neof25,OOO bushels for July delivery. The firsto.ftheae, , defendant claims, was transferred, without his order., from May to Ju»e wheat; and, :before proceediDgto speak about the chief controversy in · the case, I w,mcaU your atten,tion to this transaction. The testimony of the defendant is that he never gave any ordersfor,or cQllaented,to, .such. transfer, and that the '. plaintiffs, if they so ,made it, assuQ:leQ, the burden ofthe tzTansaction.. The evidence of the plaintiffs witll to theatithflrityto make the transfel':on iscirQutQstap.· ,tial·. Butevid.enceisintroduced :tending tpshow · defendaoti(ofwhat. had been done, not only. bydb:ect admilSSiotliof the whole indebtedness, a part ofwhich is made up of lplSSes' on th§l; ;of transferfrom May to June, but also: by evic1ep.ce:that ,thEti was .in:formed of the fact of the tJ:'ansfer, and th!;Lt a report were made to ,him on the 29th day 'Of April, , andthatmo ohjection was :made tothecoxrectnesa of count so made and rendered; , '.' 'i:', Now,jf:yC)u find from the evidence thatthe plaintiffs, about April 29, ,1889, iJifOl'med'the defendant hy letter that the 4Q,OOO bushels, of May · wheat in. fq1Wstioncould be attbattime charrged andtbat ·the:defemdantmade nO.a.nswer theI1eto;"an.d if ,·the evidenee that said. waschltnged: oye,rinto ibd, tpat the,plJlintUfs
FEDERAL REPORTER l
,a;report, and to defendant that said change had been made, and the de(endant received such report and statement, and retained it, and made no objection to said change of said May wheat to June,-then such facts amounted to and were a ratification on the part of the defend.ant of the acts of the plaintiffs in making such change. The chief controversy in this case is about the character of the transactions b6tween the plaintiflsand the defendant; which is the basis of this suit. 'It is urged by the defendant that all these transactions were wagers, ar1d: that no wheat was ever in any instance intended to be received or delivered by him; thattheplaintiffs Bo,understoodit, and that the evidence and the reports ofsMes and statements made to him show that fact; and. tbat these transactions were in violation of the statutes of . the state of lllitiois, which were read to you by counsel for the defend'iant. The plai;ntiffs' theory is,and evidence has been introduced tending to sustain:' it, !that they were employed by defendant, through the "MinneapolisofJiee, as brokers and commission merchants, to purchase or sellwheatior Juture delivery on his account, at1d that such sales and be made onthl3 Chicago Board of.Trade, with. the memberstheroof;that such contracts were to be governed by the rules and Chamber of Gommerce; and that in every instance .!tctua1 delivery:of wheat was intended by the parties to the contracts made for the defendant's account;; and that these contracts were closed and settled up by the plaintiffs in accordance with these terms, and at .. the defendant's request, and advances weremade,and their own money paid out, for·hisbenefit. The purchase and saleot wheat to bedeliverAd atafUture 'time, the day ofthe months for the delivery being optional,is a fail'contract, if the intention of the contracting partiesis to deliver the wheat, althol1gh the wheat is not in the possession of the seUer at the time of the contract of sale, but if the .contract does DOt eon.template a delivery of wheat, but both parties thereto intend a settlement of the contract at the market price, then the transaction is illegal, . within the laivof. the state of IlUnois. 8uch a contract is gambling r contrary to public policy, and demoralizing to legitimate trade. All op. tional()ontracts, however, are not -illegal under this statute, which was read to you. If the option is to 6ell or purchase 'at a future time, then it is illegal,snda wager; but if the option consists merely of a delivery "within a specified time; the contract is valid. And what was done by :.putting up' margins amounts: to nothing, unless the contract itself is j :illegal.· The validity of an option contract depends upon the mutual in:'tefitionofthe parties thereto; and if a sale or purchase of actual wheat <l'0r'futlltle delivery is intended, it is valid. If the contract is lawful, the putting up of margins to cover losses which might accrue from fluctu,iaitiotls'. in: .prices in final settlement of the transaction, according to the ofthe Board of Trade of the city of Chicago, is entirely ;Jproper and legitimate. These rules have been read to you by counsel . for pla:intiffsi ;and there is nothing in those rules, on their face, that indicates that they are in violation of the laws of Illinois. or contrary to publio: policy:. At the same time, it is weUknown that, no matter
B01'D tI. HANSON.
what may be the rules, and what may be the law, parties to contracts, or to other transacVons, if they are so disposed, may be able to violatp, them,and, contrary to the spirit of tile law, enter into a contract which may be in form valid, but within the statute. Courts, however, must recognize, from necessity, the methods of carrying on business at the present day, and apply well-settled principles of the common law to enforce contracts, unless they are forbidden by statute, or violate some rule of public policy. The daily mercantile business of the countryand by that I mean the sale and purchase of personal property-could not be successfully carried on, if merchants and dealers were unable to sell something which they did not have, but which they intended to get in the market, and buy, before the day of delivery. A trader has a 'right to sell, to deliver at some future time, that which he then has not, but which he expects to go into the market and buy; and the parties may agree mutually that there need not be a present delivery, but that' such delivery may take place at some other time. Such future delivery contracts, however, must be in good faith. There must be an intention to make an actual sale and delivery of the article dealt in. If they are merely fictitieus,-ifthe parties have no intention to make an actual sale and delivery,-'-but the intent is to settle the contract at its expiration merely by paying the difference between the contiact and the market price,then it ill a mere wager upon expected fluctuations in prices, and is illegal. ' here presented render it necessary for you to determine The what was this contract. What was the character of this transaction entered into between the parties? If you should determine from the 'evidence that there was to be no delivery under the contracts which have been testified 'to, and that the memoranda offered in evidence in the 8hape of these cards," as they have been called, and the contracts for side and purchase of wheat, were fictitious, and merely colorable, and made and executed as a cover for speculation in margins; that, in case the price of wheat fell or rose in the market, merely the differencewas to be paid; and that that was the intention of both parties, -then the contracts are in their nature wagers, and illegal. In that case the contract required no offer to perform, nor was an ability to perform contemplated, in order to entitle the party claiming the breach of the contract to the difference.· The theory of the defendant is that these transactions between the plaintiffs and hiinself were wagers. He insists that the arrangement which was made, as far as his intention was concerned, with the plaintiffs, was merely betting upon the future prieeof wheat; and he claims that the testimony of the contracts themselves, and the reports which were rendered him, and the correspondence, show that such was the intention of the plaintiffs, and that both parties knew . and understood that these transactions were mere wagers, and that no wheat was to be delivered or received. Thetheory of the plaintiffs is that hey were brokers and agents appointed by the defendant to transact business, in good faith, for the purchase and sale of wheat for future delivery, and that they did so;a.nd that all these little memoranda of v.41F.no.4-12
delivery,...,....then thepl.a.intiffs are ·to recover,the amount thus paid, laid out, and expended for the defendant, and their commission. If you find that· thepla,intiffs were commission merchants . of said city of Chicago, andme11lbers of the. ,Board of Trade in that city, and they acted as the brokers of the defendant, and at defendant's request, .apd from time to time,during the period in here, made, in good faith, the contracts read in evidence, on the orders of the defendant, and that said contracts intended the actual delivery of wheat therein mentioned, 'and, in settlement of the said contracts, plaintiffs paid, laid out,and expended money for defenq.ant., they can recover in this action. And if you believe from the that these plaintiffs, acting as the agents of the defendant, entered into these contractsevic;lenced by these memoranda, and they were contracts for the purchase and sale of wheat, then such contracts· calmot· be rendered illegal by thElmere intention of the defendant alone not to deliver or receive the property. To make brgambling contrllCt, such:contract, read in evidence, void as 'a. each party to .the contract must have'designed and intended, at the time the, contract was entered into, not to buy and receive the property I but to settle' the lilere differehces between the contract price and ·the market pric\3. iAnd if you should find that the defendant to gamble in wpeat, andat no time 'to deliver orreceive the property, and pay for it, and 'if you also find that the plaintiffs were ignorant,'ofsuch intention on the part of the defendant, and they received of the defendant to buy and sell in good faith,and in doing so. incurred obligation's for said defendant by said contracts', and the contracts intended the actual, delivery of Wheat, and plaintiffs paid money upon these contracts, to./ldjust them for defendant, then they are entitled torecover a verdict in this action. ,. . j ", , On the other hand, I would say toyou that these memoranda which :have \)et1n offered in evidence, and the entries on the plaintiffs' books of tnesec6ntracts. are not coiidlisive evidence of their character. You are to determine what these conhacts were. You are to determine from the. in the case. Yau can look into th e transactions themselves, as 'disclosed by the evidence, and determine,from the facts and circumtheir milking, an9- the conduct of the parties thereto with ,reference to them, whether they' are illegal, within the rule laid down; or. whether they. are bona ftdecontracts for the purchase andsale bfwheat to be delivered ata future time. I might say to you here that, if you find from the evidence that any of these contracts had been offset .and regulations as prescribed by the Board 'of Trade of between persons connected with that hol1 rd, through whom these phiintiffs operated,-that is not .evidence of their illegality. The mode of settlement of bona ftdecontracts fof the'sale of actual wheat does not affect the validity of the contract, if the original intention was to purchase, receive, take, and deliver the actual wheat, at the time specified when the contracts were made. I have been presented with a great many requests on the part of the plaintiffs, and one on the part of the defendant. (Counsel for plaintiffs
I'EDEBAL REPORTER t
sta'tethat their requests have been given in substance by the court, and that they desire to withdraw the same.) . I have virtually given the request presented by the defendant, but I will give it in his language, accompanied by some statement which I will make with reference to it: "If you should believe that it was the intention of both parties to this con· tract that no actual whelit was sold or delivered, or intended to be delivered at a future time; and if:)'ou should find from the evidence that it was not the intention of either party.that a contract .should be made by plaintiffs to buy and hold wheat for delivery to the defendant, but that1t was the real intention and the understlulding of the parties that a contract should be made which should be closed at a future date, not by the delivery of the wheat, and the payment of the purchase price, but by the payment of money to one party .or the other, the parties to receive the same, and the amount to be paid. to be determined upon ablt!li!jofthe differeQce between the agreed purchase price at the time the purchaSes the actual markl!t value of the were closed.-then the jury are instructed wheat on the day when that such contracts areIllegal in law, and void, and you will find for the de·fendant." .. ' '. . .. . , . I have that, but I have put it iQ. the form stated by the defendant. . .' , .. .' . On the question Of amount, there is some $17,000 odd Glaimed to be due the plaintiffs, 'and some $600 for commission. ' The pleadings in th,e "case sbow thea,mourit<CIaimed to be due. If the contracts arenot lng contracts, as far' amount that is actually due is concerned, jt would. depend upon-",bE1!qer you determine that there was a ratification of an act which was dqne by the plaintiffs, ,claimed to have been done :Without any order fron} the defendant. I have statl;ld to you the law which will govern you in regard to the settlement of that question. The tiefendant, giving his own testimony, as to no order having been seritby him.. The have introduced facts and Cir<lUll1stances tending to show that that order was given, and in addition to that, they have introduced the testimony of witnesses as to an admission on the part of the defendant that the account. was correct, and also that th'e ae'count rendered was put iQ. his handsin the of the 29th of ,April, or thereabouts, and, a letter in whiCh he'was informed of the change; that, no reply was by hi]]} that an accOl;mt was <lereu of the transactlon; that he retained the account, arid had' pondence with the plaintiffs afterwards in rElgard to some other' matters? without mentioning or ra,ising any objection to it; and that he gaveui> to the inforrrlation ¢on'tained in that letter. , If you find frqrn the eyidenceall facUl, you are tosaywhether it did or didhotamo1;lnt .jo ratification. . If tqe fa,cts are true, theQ. there is a ratification. I think you it. . ' .;""
LUSBY 11. ATCHISON, T;;I:
T. & S. F. Ry. Co.
(Oircuit Oourt, D. Ootorado. January 21, 1890.)
CARRIERS-INJURIES TO PASSENGERS-PIIOVINCE OlP JURY.
In an action against a ra:Uroad company, where plaintifr testifies that, as the freight train on which he was a.passeuger neared a station, he arose to go and look out, when a sudden jerking threw hiindown, and that he lay in pain during the. switching at the station, and sufrered greatly from the jerking incident thereto, verdict in his favor will not be set.aside.on account of thl'! strength of defendant's evidence that the injury oCcurred as they were preparing to leave and not as they approached the station, as the weight of the evidence and credibility of the wit.: nesses are for the jury. A passenger in the caboose of a train, in getting iIp and starting to go and look out on the sounding ofa whistle mdicating approach to a station, is not guilty ofcontributory negligence. in the abseuce of proof. that the jerking. by which he, was thrown down was so usual that he IIhouId have anticipated it..
At La-w:. On motion for new trial. Petersim « Thomas, for plaintiff. C.' E. Gast and Wells, McNeal « Taylor, for defendant· . Before PHILIPS and HALLETT, JJ.. .'
'PHILIPS, J. This is an aotion for personal injuries sustained by the plaintiff while a passenger on one of defendant's freight trains running from Pueblo, Colo., to the town of Coolidge, in the state of Kansas.· The case was 'tried by a j my, before HAT.LETT, J. Verdict for plaintiff. The case now stands on motion for new trial; and, by request of Judge HALLETT, I Sat with him on the hearing of this motion. Not having· time and opportunity, while holding oourtat Denver, to oonfer with him respecting the motion, at his request I submit for his consideration the views entertained by me respecting the merits olthe motion. The facts of the case, about which there is little controversy, are, briefly, as follows: The plaintiff, aged about 60 years, had some prior to the accident been in defendant's employ ·at its train yards at Pueblo as a machinist, and had thereby become acquainted with the conductor and trainmen in charge of the freight train in question. He was not, however, so in the employ of the defendal1t at the time of the' injury. On the 12th day of July, 1885, it being Sunday, he applied to the conductor in charge of a freight train on defendant's road to be car· ried as a "dead-head" from Pueblo to Coolidge, and was admitted by the' conductor as a passenger on this train; The eVidence showed that de· fendant was in the habit of carrying' passengers in the caboose uSli'ally attached to such freight trains. This freight train was composed of about· 4'6 freight-cars, with appliances connected 'with only it srnall portion of the fremt cars; 'On the other cars there were the customary hlJ,nd.brakes, and there·weTe brakemen for their operation.' There was. <lne other passenger in the caboose with the plaintiff. The plaintiff's testimony, in SUbstance; was that, as this train approached the railroad staiion called Blackwell, the cars whistled the usual signal for approl!-ching a .railroad station; ,whereupon the plaintiff left his' seat, aildstartetl to the '