Gregory v. Wattowa

Eothrook, J.

1. CONTRACTS: optional transactions : when void. -Passing the question as to the effect of the dismissal, of plaintiff’s petition of intervention, in the former action concerning these notes, we come to the main question uP011 fhe merits of the case, which is, was the transfer of the notes by the plaintiff to Bryden, Moak & Scurr void, or rather voidable at plaintiff’s election, because the transfer was an advancement made, or security for advancements to be made, by the indorsees, for certain gambling transactions in the price of grain to be by them entered into and carried on in the name of the plaintiff.

It was incumbent on the plaintiff to establish the allegations of his petition and show, notwithstanding his indorsements of the notes, that he was still the owner of them. And in the face of his indorsements he could do this, if at all, only by showing that the purchases and sales of grain were illegal and void'as being mere gambling transactions. In this we think he. has failed. Without setting out the testimony we deem it sufficient to say, that it does not show that the transactions in question were bets upon the future price of grain, and that the parties intended that there should be an option by either the buyer or seller, whether or not the grain contracted for should be delivered or received. There is no showing that the transactions were intended by the parties to be closed without delivery, and by mere settlements of the differences in the price at the time settlements were required. On the contrary it does appear by evidence which is not contradicted, that the grain bought and sold by Bryden, Moak & Scurr was actually delivered by and to them at the maturity of the contracts, and in case of purchase the purchase-price was actually paid by them. It may be that this testimony is not true, but we cannot so hold in view of the fact that it is not contradicted and does not bear upon its face evidence of its falsity.

The option as to the time of delivery of merchandise purchased is not illegal, if there be an agreement to make actual delivery. The optional contracts that are void, are such as do not contemplate the actual delivery of the commodity purchased, but rather contemplate that the subject of the contract is not intended to be delivered. Logan v. Musick, 81 Ill., 415; Pixley v. Boynton, 79 Id., 353; Corbitt v. Underwood, 83 Id., 324; Bigelow v. Benedict, 70 N. Y., 202.

There is some claim made in argument that Bryden, Moak & Scurr refused to obey the plaintiff’s instructions in the transactions in question, to his damage. If this were a material question between Johnson and the plaintiff (which we need not consider) yet we think the proof fails to show that there was any such violation of instructions as operated to discharge the plaintiff for the advances made for him. The plaintiff admits in his testimony that all of the purchases were made on his order, and all sales except two were made by his direction. As to these, he claims they were made in violation' of his orders, and to his damage. But the other evidence in the case shows that these sales were made because plaintiff failed to furnish further margins to carry the wheat longer.

We think the decree of the court below must be

Affirmed