(after stating the facts). — The parties assume that the trial court forced plaintiff to take a nonsuit because it believed that upon plaintiff’s evidence no delivery was intended and the transaction was a mere wager and void. We will first consider the action of the court from that standpoint. At the outset we may say that the contract in suit does not come within the denunciation of section 4780, Revised Statutes 1909. That section denounces as gambling and void “all purchases and sales or pretended pur*153chases and sales, or contracts and agreements for the purchase and sale, of . . . grain, . . . either on margin or otherwise, without any intention of receiving and paying for the property so bought, or of delivering the property so sold, and all the buying or selling or pretended buying or selling of such property on margins or on optional delivery when the party selling the same, or offering' to sell the same, does not intend to have the full amount of the property on hand or under his control to deliver upon such sale, or when the party buying any of such property or offering to buy the same does not intend actually to receive the full amount of the same if purchased.” If either of the parties lacks intention to deliver or receive, etc., as contemplated by this section, the contract is void, irrespective of the intention of the other party. [Sections 4781, 4785, R. S. 1909; Atwater v. Brokerage Co., 147 Mo. App. 436, 126 S. W. 823.] This is a penal statute and is to be strictly construed and only such transactions are covered by it as are within both its spirit and its letter. [State v. Gritzner, 134 Mo. 512, 527, 36 S. W. 39.] It will be noted that the statute speaks only of purchases and sales or pretended purchases and sales, or contracts and agreements for the purchase and sale of grain, etc. Obviously the contract in suit is none of these. It is a contract for a contract of purchase and sale of grain. It is at least once removed from any transaction which might come within the statute. But it may be void even though without the statute. If the real intention of both parties was that if the plaintiff exercised his option, no'contract for the purchase and sale of wheat would be made, but in lieu thereof the defendant should pay the plaintiff the difference between the price agreed upon and the market price, or if the real intention of both parties was that such a contract should be made, but not enforced or delivery made thereunder and should be settled by the payment of the dif *154ference between the contract price and the market price, then in either such event the transaction would be a mere wager, a contest of skill in predicting future conditions of prices, and would be unenforceable. [Williams v. Tiedemann, 6 Mo. App. 269.] The contract is not, however, to be considered a wager or illegal merely because it is optional on one of the parties and obligatory on the other [Williams v. Tiedemann, 6 Mo. App. 269]; or because it contemplates the execution of a contract to sell for future delivery wheat which he who contracts to sell has not on hand but expects to go upon the market and purchase for delivery in pursuance of his contract [Kent v. Miltenberger, 13 Mo. App. 503]; or because, if the contract to sell be entered into, he who contracts to purchase, may .later sell the same quantity of wheat to him who contracts to sell and the parties waiving cross-deliveries may settle by paying the difference between the prices at which they respectively bought. [Kent v. Miltenberger, 13 Mo. App. 503.] It would be illegal if, when the contract was made, both parties intended and contracted for a settlement of differences according to the ’fluctuations of the market, and neither of them contemplated a delivery. [Williams v. Tiedemann, supra.] But, where, as here, the contract is legal on its face and relates to a proper subject-matter the law will not presume against its validity. Whether the parties did not contemplate a delivery but did contemplate a mere settlement of differences is a question of-fact, and unless the uncontroverted evidence is such that from it reasonable minds could not differ as to the conclusion to be drawn therefrom the question is one for the jury to determine upon all the facts and circumstances in the case. [Kent v. Miltenberger, 13 Mo. App. 503; Schreiner v. Orr, 55 Mo. App. 406]. And the burden of proving that fact lies upon the party alleging it, which in this case is the defendant. [Williams v. Tiedemann, supra.]
*155We have been unable to discover anything in the evidence before us to justify the conclusion as a matter of law that the contract in suit is a mere wagering contract or transaction. The defendant isolates the following question and answer from the examination of one of plaintiff’s witnesses and insists that they justified such conclusion. “Q. Is wheat ever delivered on put and call contracts'? A. Not on this kind of contracts.” But the witness’ testimony, as well as the other evidence in the case, makes it very apparent and conclusive that he meant by his answer that while wheat is not delivered on this kind of contracts, a contract to sell wheat is so delivered. In other words the contract in suit does not give an option to have wheat but to have a contract for wheat.
If there was no other ground upon which to base the action of the trial court than that we have discussed we would feel compelled to reverse the judgment; but there is another ground upon which in our opinion the judgment of the trial court should be affirmed. This is an action on a special contract and in such an action the plaintiff can recover only on the contract pleaded; not on a different one. [Laclede Co. v. Tudor Iron Works, 169 Mo. 137, 69 S. W. 384.] Plaintiff alleges that by the instrument sued on it was agreed that on or before May 18, 1907, upon demand of plaintiff, the defendant would sell to plaintiff 25,000 bushels of wheat at 86% cents per bushel and deliver the same to plaintiff dnring the month of July, 1907. Then, after alleging a demand that defendant sell to him said wheat and defendant’s refusal to sell it to him, plaintiff alleges that “at the times plaintiff made demand upon the defendant for the sale of said wheat to him and at all times, in accordance with the terms of said contract (the contract sued on) the plaintiff was ready, able and willing and duly offered to pay for said wheat. ’ ’ All this shows a clear intent to plead a contract to sell upon demand, i. e., to presently trans*156fer the absolute or general property in the wheat for a price in-money. Now plaintiff’s proof, as we have already made plain, is of an entirely different contract, viz., a contract on demand to make and enter into a executory agreement to sell. There was therefore, a total failure of proof on plaintiff’s part, and the circuit court properly forced him to take a non-suit. Its judgment is affirmed.
Reynolds, P. J., and Nortoni, J., concur.