On Application for Eeiiearing-.
McGloin, J.The opinion of the honorable. District Court for this Parish, Division 0, rendered in the suit of Brittin & Bright v. Johnsen, has been cited, in support of an application for a rehearing. The high esteem in which we hold the learned judge who decided that case, has led us to consider *364his opinion carefully, and to examine again most closely the -questions involved.’ We may say that we consider that there is, in the main, no great difference in matters of law between the opinion in that cause and the one already given by us in this. Both agree that where the original and mutual intention of the parties is not to deliver and to pay the price, but merely to settle for differences, the conventions are aleatory and void ; that the question is one of fact, and that it is -not dependent upon or concluded by the form or wording of the contract itself.
The proof in the case of Brittin & Bright v. Johnsen does not seem to have been in all respects similar to that, which appears in this record. We do not propose to criticise the findings of our learned brother who decided that litigation upon the particular facts that were before him, as each transaction must.be determined by its own circumstances. So far as our -own opinion is concerned, as originally rendered, and as based upon the facts of this case, renewed examination and further reflection have but strengthened us in our convictions.
We held that the intent to gamble might be implied, and that it was susceptible of establishment by circumstantial evidence. It is a matter of most frequent occurrence that persons •contracting, say or do nothing to express an intent which each has and knows the other to have, relative to matters of essence to their agreements. Thus, one man enters the place of •another, and orders one or more barrels of flour sent to his own house or store. Both are silent as to price. The intention, however, that the transaction should be a sale, ánd to -accept the market or usual price, exists, and will be inferred; so, in the vast majority of purchases, there is nothing mentioned with regard to delivery or terms of payment; yet it •must be held that delivery, and that immediate, was contem.plated, and payment as well — the latter according to usage. In this manner, illustrations might be indefinitely multiplied, •but those given are sufficient.
Applying these principles to the case at bar, it is evident *365that parties dealing in futures may both have the intention of gaming, and such intention may be mutual, although no words expressive thereof are passed. In searching for the undisclosed intent, the court knows of no guide except the general rules of evidence, and can go forward in no manner differently from that in which it would proceed, were it a sale of flour,, •as above supposed, which was being investigated. The same circumstances and considerations which would be of force in the one case, must serve us in the other.
In the matter of the order for flour, the judge could usefully inquire into the nature of the original possessor’s business,, and, were the latter only recently established, proof as to the general character and usage of the particular trade in which such possessor had embarked, would be acceptable. So, in this, case, we regarded the proof given, that dealing in futures had become an established and extended business, involving transactions by the thousand, and purporting to handle cotton by the millions of bales; that in the course of this business, settling by payment of differences, was the rule and usage, and delivery and payment matters relatively of rarest exception;, that its dealings involved in one month many times more cotton than was in the entire crop of the year, and that it could not possibly be conducted upon the scale attained, were delivery and payment actually demanded in any great number of cases. The suggestion that each of these future contracts is-assignable, and that they are frequently so assigned, and that, as each transfer is registered, the appearance is that much more cotton is sold than is actually so disposed of, cannot affect our judgment. In the first place, no proof of this circumstance is in the record of this case; and if it were, it would not do away with the fact that thoroughout each line of as-, signments, and at the actual end of the contract’s life, there is almost, without exception, the intent to adjust by settlement of differences alone. The actual usage of this trade would not be touched, and the fact might also remain that the aggregate of' contracts- themselves, in connection with the spot business,, *366would remain far beyond,the amount of cotton available in the market for delivery, or even far beyond the total itself of the entire crop.
In the matter of the flour , the court- would admit proof of prior dealings between the parties and its character, showing that on previous occasions the defendant had given similar orders, and in every instance, without demur, had paid the grocer’s bill, drawn up in accordance with the market price. So, in this case, we regarded and gave effect to the testimony, etc., showing that Condon and Bignon had had in the past, dealings similar to those under investigation, and that these antecedent transactions had been adjusted, invariably, and as a matter of coursé, by simple settlement of differences.
Stronger than all, however, if, in the case of the flour, without fresh conference, the receiver had sent and the deliverer accepted a promissory note, covering the value of the flour at current rates, could it be contended that this circumstance would not establish conclusively the original intent as determining the nature of the transaction 1 In the matter now under investigation, the dealings that serve as a basis for the note sued upon, being accompanied, at the moment of their birth, with no particular discussion as to delivery and payment of price, were disposed of as a matter of course, by simply charging differences, and this last without so much as a mention of delivery or payment. If the original intent were to deliver and pay, the natural outcome of each transaction, in default of subsequent modification, would be delivery and demand for the entire price. Any change in the original purpose would be the offspring of renewed negotiation, and such negotiation and its result would be made to appear. Here, however, instead of (joining together for new arrangements, the pretending vendor sends upon printed and formal blanks to the pretending purchaser a mere account of differences, and this is received by the latter as the natural, proper and expected conclusion of the matter. Under such circumstances is the presumption not invincible, that the settlement was in *367strict accordance with the original and mutual intent, harbored by each contractant, and each knowing at the time that expression was a matter of no necessity ‘1 Such a state of facts, even though disclosing itself in one particular case, goes far to strengthen the conclusion that the common, and almost universal usage in this cotton-future business is to settle solely upon differences; for, otherwise, how would the parties to this controversy have dispensed in the manner they have ■done, with any stipulation, original or subsequent, waiving delivery and payment % It shows that the usage was so general and so universally conceded and understood, that it sufficiently determined these questions, entering by implication into their contracts, and rendering express discussion and convention matters of supererogation.
Under such circumstances we can see no pertinence in the authorities which declare that a contract, originally lawful, may be finally adjusted by a mere payment of differences. To give such authorities applicability in face of such a settlement, it should appear that this subsequent understanding was in fact arrived at; and they can have no bearing upon a controversy wherein, as in this, there was in reality an entire absence of any such subsequent modification of the original convention.
Furthermore, the supposition that one tendering a sale of cotton-futures may come in contact with a person intending really to take the cotton, and pay therefor, cannot militate against this position. It may possibly be true, that where one of the parties to such a contract contemplates a strict and literal performance, the transaction is not void. In such event, when the time for performance arrives, such a bona fide purchaser calls for his cotton, and the features peculiar to this case do not and cannot arise. Such a controversy would be determined according to its own facts, but they would not be the facts that are disclosed in this record.
We adhere to the views originally expressed relative to the effect of the rules of the Cotton Exchange. They are not con-*368elusive, and we are not compelled to respect them as an impenetrable veil, which is to conceal successfully the gambling intent in every case. We are dealing with a system of business which, by the evidence in this case, seems, on the whole, to be essentially of a.gaming character; and it would be ah extraordinary exposition of judicial weakness were any formal and empty rules to' serve as a complete protection, in favor of wholesale gambling, and against judicial scrutiny and condemnation.
Rehearing refused.