It seems to me that the second, count states a wagering contract. It alleges that the parties agreed to deal and traffic upon the market-value of wheat, and that they did so traffic and deal between certain dates. Here is a distinct allegation that the subject of their dealing and agreement was the market-value of wheat, in distinction from the wheat itself. Then it proceeds to state the mode, viz., that plaintiff gave his orders to defendant for wheat, and paid defendant’s commissions “ for doing the business,” not necessarily fpr making purchases; and, also, paid a margin to secure defendant against a decline in the 'market-value; that if the market-value should advance it was agreed'that plaintiff should be entitled to the advance. Now, if these orders, given by plaintiff, were to be. actually fulfilled by defendant and the wheat actually purchased, there would be no need of an agreement, the plaintiff should be entitled to the advance in the market-value. For in that case the wheat would belong to plaintiff and he would have the benefit of the advance without any agreement. The fact, then, that it was necessary to make an agreement to this effect indicates that though orders were given they were not to be executed. The complaint goes on to say that the transactions were based on the rate, condition and fluctuations of the market value, and that defendant had closed the transactions (not sold the wheat) on the basis of the market and had retained the margin of $2,535. If there had been an actual purchase of wheat by defendant for plaintiff, and a subsequent sale of the same at such a decline as to cause a loss of $2,535, then the defendant would not have kept and retained that sum, but it would have been lost by the decline in prices. Here, however, the demurrer admits that defendant had kept and retained that money for the reason that by the decline in market-value the margin had been exhausted. I think that sufficient was stated to show a wagering contract. (Bigelow v. Benedict, 70 N. Y., 202, 206.) How the fact may appear in the trial we cannot tell.
I think the interlocutory judgment should be affirmed, with costs.
Williams, J., concurred.