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amounts in legal cffect to a merc wager on thc price of the him of a sale, in case he is able to deliver, and the purchaser may in the same way guard himself against loss beyond the consideration paid for the option, in case of his inability to take the goods. There is no inherent vice in such a contract:" Bigciow w. Bencdict, 70 N. Y. 202; S. C., 26 Am. Rep: 373 ; Brown v. Hall, s Lans. (N. Y.) 177; Perryman s. Wolfe, 93 Ala. 290; S. C., 9 So. Rep. 148; Kirkpatrick v. Bonsall, 72 Pa. 155; Maxton 2. Ghcen, 75 Pa. 166. It makes 110 difference that the transaction is a speculative onc: Stewart %. Parnell, 147 Pa., 523; S. C., 29 W. N. C. 537; 23 Atl. Rep. 838. If the intention of the parties is to execute the contract, in case the option is cxercised, by an actual delivery and receipt of the subject matter, the contract is valid : Sondheim 11. Gilbert, 117. Ind. 71; Rumsey'
. Berry, 65 Me. 570; Farnum i'. l'itcher, 151 Mass. 470; S. C., 24 N. E. Rep. 590; Jones a'. Shale, 34 Mo. App. 302; Noyes Spaulding. 27 Vt. 420. The delivery need not be manual; it may be symbolical. by means of warchouse roccipts, bills of lading, or the like: Fisher 7'. Fisher (Ind.), the principal casc, 36 N. E. Rep. 296; Farnum 11. Pitcher, supra; Gregory v. Wendell, 39 Mich. 337.
11. If, however, there is no actual delivery intended, but the transaction is to be settled by the payment of the difference between the market price and that fixed by the contract, goods, and the contract is accordingly held void, at common law, as well as by statute in many States. "Such contracts are against public policy, because they tend to unsettle the natural course of trade, and tempt the parties to them to work. for a rise or fall in the prices of the commoditics on which their wagers are laid, without regard to actual valucs, and by methods calculated to promote their own profit at the expense or ruin of others, without reciprocity of benefit. And, besides these cvils, there are others, more immcdiate to the parties, culminating from time to time in loss of fortune and character, defalcations, crime and domestic miscry, cvils which, though they do not always follow, yet follow so often that they have not been overlooked by the courts:" Flagg ». Gilpin, 17 R. I. 10; S. C., 19 Atl. Rep. 1084; Grizcwood 2. Blanc, 11 C. B. 525;
Barry . Croskcy, 2 J. & S. 1; Bartlett v. Smith.13 Fed. Rep. 263; Embrey 7. Jamison, 131 U.S. 336; S. C., 9 Sup. Ct. Rep. 776; Cobb v. Prell, 16 Cent. L. J. 453; Justh 7. Holliday, 17 Cent. L. J. 56; Lee v. Boyd, 86 Ala. 283 ; S. C., 5 So. Rep. 489; Pickering v. Cease, 79 III. 328; Cothran v. Ellis, 125 III. 496; S. C., 16 N. E. Rep. 646; Watte v. Costello, 40 III. App. 30; Beadles v. McElrath, 85 Ky. 230; Rumsey v. Berry, 65 Me. 575; Gregory v. Wendell, 39 Mich. 337 ; Waterman v. Buckland, i Mo. App. 45; Cockrell v. Thompson, 85 Mo. 510; Rudolf v. Winters, 7 Neb. 125; Yerkes v. Salomon, 11 Hun. (N. Y.) 471; Peck v. Doran, 46 Hun. (N. Y.) 454; Story v. Salomon, 71 N. Y. 420; Williams v. Carr, 80 N. C. 294; Lester v. Bucl (Ohio), 30 N. E. Rep. 821; Brua's App., 55 Pa. 294 ; North v. Phillips, 89 Pa. 250; Oliphant v. Markham, 79 Tex. 543; S. C., 15 S. W. Rep. 569; Everingham v. Meighan, 55 Wis. 354; S. C., 13 N. W. Rep. 269; Lowry v. Dillman, 59 Wis. 197.
A future contract is not illegal, however, merely because it is in fact settled by the payment of differences. It is the original intent of the parties that governs; and if that be for a bona fide execution of the contract by delivery, even though contemplating the possibility of a settlement by way of adjusting differences, the contract is valid in its inception, and either party may waive his right to actual exccution, and make a settlement on the basis of differences in price, which will not render the contract void : Clarke v. Foss, 7 Biss. C. Ct. 540; Boyd v. Hanson, 41 Fed. Rep. 174; Univ. Stock Exch.v. Stevens, 66 L. T. N. S. 612. The existence of the illegal intent is not necessarily to be inferred from the final settlemen: (though it would seem to be a strong indication of it]: Ware v. Jordan, 25 Ill. App. 534; sce Porter v. Viets, 1 Biss. C. Ct. 177.
Similarly, the fact that the transaction was carried on through a broker, by means of margins furnished him to secure him against any loss which he might suffer on his principal's account, is not an infallible sign of a wagering contract. The intent to deliver may exist in such a case, and the margin may be demanded only as an earnest to secure the delivery of
the goods, or the payment of the purchase price: Preston v. R. R., 36 Fed. Rep. 54; Union Nat'l Bk. v. Car, 16 Cent. L. J. 320; Fisher v. Fisher, 113 Ind. 474; S. C., 15 N. E. Rep. 832.
III. In order to invalidate a future contract, the illegal intent must be mutual: Connor v. Heman, 44 Mo. App. 346. If either party intends a bona fide execution, the contract is · good as to him, and will be enforced at his suit. The secret intention of the other party cannot affect his rights : Clarke v. Foss, 7 Biss. C. Ct. 540; Bartlett v. Smith, 13 Fed. Rep. 263; Bangs v. Hornick, 30 Fed. Rep. 97; Lehman v. Feld, 37 Fed. Rep. 852; Edwards v. Hocffinghoff, 38 Fed. Rep. 635; Boyd v. Hanson, 41 Fed. Rep. 174; Pixley v. Boynton, 79 III. 351; Carroll v. Holmes, 24 Ill. App. 453 ; Benson v. Morgan, 26 Ill. App. 22; Wheeler v. McDermid, 36 Ill. App. 179; Whitesides v. Hunt, 97 Ind. 191; Murry v. Ocheltree, 59 Iowa, 435; S. C., 13 N. W. Rep. 411; Gregory v. Wendell, 39 Mich. 337 ; Williams v. Tiedeman, 6 Mo. App. 269; Cockrell v. Thompson, 85 Mo. 510; Hentz v. Miner, 64 Hun. (N. Y.) 636; S. C., 18 N. Y. Suppl. 880; Williams v. Carr, 80 N. C. 294; Wall v. Schneider, 59 Wis. 352; Ashton v. Dakin, 4 H. & N. 867.
IV. In conscqucncc of the manner in which these transactions are now carried on through the medium of Exchanges and Boards of Trade, it very rarely happens that a future contract is made directly between the parties. It is usually effected through the medium of a broker employed for that purpose; and this introduces a new clement for consideration, viz.: whether the broker, thus employed, is to be viewed as a mere agent, unaffected by the illegal intent of the parties, or whether he is so far affected by that intent as to be precluded from recovering advances and commissions on account of such contract.
The rule in England, as laid down in Thacker v. Hardy, 4 Q. B. D. 685; S. C., 27 W. R. 158, scems to be, that the broker, even with knowledge of the customer's illegal intent, is merely the agent of the latter; and that as there is no agreement between him and the customer to buy or sell, there is no illegality in his employment, and he can recover advances and
commissions : Rosewarnc v. Billing, 15 C. B. N. S. 316; see, however, Cooper v. Neil, U. N., 1878, p. 128. But in America the far more reasonable rule is adopted that “when the broker is privy to the unlawful design of the parties, and brings them together for the very purpose of cntering into an illegal agreement, he is particeps criminis, and cannot recover for services rendered or losses incurred by himself on behalf of either in forwarding the transaction:" Irwin v. Williar, 110 U. S. 499; S. C., 4 Sup. Ct. Rep. 160; Embrey v. Jamison, 131 U. S. 336; S. C., 9 Sup. Ct. Rep. 776; Re Green, 7 Biss. C. Ct. 338; Phelps v. Holderness, 56 Ark. 300; S. C., 19 S. W. Rep. 921; Walters v. Comer (Ga.), 5 S. E. Rep. 292; Bk. v. Cunningham, 75 Ga. 366; Cothran v. Ellis, 125 III. 496; S. C. 16 N. E. Rep. 646; Wheeler 9. McDermid, 36 III. App. 179; Stewart v. Schall, 65 Md. 289; Harvey v. Merrill, 150 Mass. 1 ; S. C., 22 N. E. Rep. 49; Hill v. Johnson, 38 Mo. App. 383; Crawford v. Spencer, 92 Mo. 498; Kahn v. Walton, 46 Ohio St. 195; S. C., 20 N. E. Rep. 203 : Lester o. Bucl (Ohio). 30 N. E. Rep. 321; Fareira v. Gabell, 89 Pa. 89; Dickson v. Thomas, 97 Pa. 278. One who deals with a broker deals with him as a principal, not as an agent: Ruchizky v. De Haven, 97 Pa. 202. It does not matter that some of the parties with whom the broker dealt werc actual buyers and sellers. The illegal intent pervades the whole course of dealing : Fareira v. Gabell. 89 Pa. 89; Miles v. Andrews, 40 Ill. App. 155. The question is purely between the broker and the customcr, and his dealings with third parties are immaterial on the question of the understanding between them: Griswold v. Gregg, 24. Ill. App. 384; Kennedy v. Stout, 26 Ill. App. 133; Miles v. Andrews, 40 Ill. App. 155.
Two cases only appear to favor the English rule: Taylor v. Penquite, 35 Mo. App. 389, which rests on a mistake as to the decision in Cockrell v. Thompson, 85 Mo. 510; and Barnes v. Smith (Mass.), 34 N. E. Rep. 403, which seems to cling to the idea that the broker is the agent only of the customer; but these are of no weight against the preponderance of authority cited.
is, however, the broker is ignorant of the illegal design of
his customer, and acts in good faith, the contract is good as to him, and he can recover his advances, commissions and losscs : Rountree i'. Smith, 15 Repr. 609; Irwin v. Williar, 110 L', S. 499; S. C., 4 Sup. Ct. Rep. 160; Lchman v. Feld, 37 Fed. Rep. 852; Edwards v. llocffinghoff, 38 Fed. Rep. 635; Boyd i. Hanson, 41 Fed. Rep. 174; Murry v. Ocheltrec, 59 Jowa, 435; S. C., 13 N. W. Rep. 411; Williams v. Carr, 80 N. C. 294; Potts v. Dunlap, 11o Pa. 177; S. C., 20 Atl. Rep. 413.
V. As the intent of the parties is the criterion of the nature of the contract, anything which goes to show that intent is admissible as evidence in a suit founded on the contract: Yorkes v. Salomon, 11 Hun. (N. Y.) 471; Cassard v. Ilinman, 6 Bosw. (N. Y.) 14; Mientz i'. Miner, 58 llun. 428; S. C., 12 N. Y. Suppl. 474. All the circumstances surrounding the transaction, and the conduct of the partics with rcfcrcncc to it, are legitimate evidence on this question : Boyd ». Hanson, 41 led. Rep. 174; Hill ». Johnson, 38 Mo. App. 383. The general course of dealing between the partics is some evidence, though not conclusive, of the nature of the transaction in question : Watto v. Costello, 40 III. App. 307; Lowc ?'. Young, 59 lowa, 364; S. C., 13 N. W. Rop. 329; Kenyon w. Luther, 4 X. Y. Suppl. 498; S. C. aff., 10 N. Y. Suppl. 951. And so is the general course of dealing of the Board or Exchange, of which the broker is a member: Beveridge a. Hewitt, 8 III. App. 467. But it is not allowable to give in evidence special instances of illegal transactions, cither with the party to the contract, or with third persons: Gruner v. Stucken (La.), 3 So. 338; Dwight v. Badgley, 60 llun. (N. Y.) 144; S. C., 14 N. Y. Suppl. 498; Potts v. Dunlap, 110 Pa. 177; S. C., 20 Atl. Rep. 1413. Even the subsequent acts of the parties may bc cvidence of their original intent: Clarke v. Foss, 7 Biss. C. Ct. 540.
Thc rules of the Board or Exchange on whose floor the dealings are carried on are admissible on the construction of the contract: Bartlett v. Smith, 13 Fed. Rep. 263; Bibb v. Allen, 149 U. S. 481; S. C., 13 Sup. Ct. Rep.950. When the rules provide that is further margins are not put up on notice, the