tions of human affairs; and their variety is bewildering to any one not to the manner born or at least bred. Starting with a simple "option" (to buy or to sell) we are soon introduced into a labyrinth of "puts" and "calls," sales "short" and "long," and the like, until we reach the highest development of the stock gambler's inventive genius in the famous "straddle," that marvelous machine designed to rescue the unhappy operator from being impaled on either horn of a dilemmathough having a peculiar tendency to transfix him with both. But whatever the name, and whatever the outward form, a "future" contract means substantially a contract to buy or to sell, or to deliver or to receive commodities at some future time.

I. A contract to buy or to sell goods, the execution of which is postponed to some future time, is not necessarily invalid, even though the goods are not in the possession of the vendor, nor has he contracted to procure them from another, nor has any reasonable expectation of becoming possessed of them by the time appointed, otherwise than by purchasing them after the contract is made: Hibblewhite v. McMorine, 5 M. & W. 462; Ashton v. Dakin, 4 H. & N. 867; Bartlett v. Smith, 13 Fed. Rep. 263; White v. Barber, 123 U. S. 392; S. C., 8 Sup. Ct. Rep. 221; Bibb v. Allen, 149 U. S. 481; S. C., 13 Sup. Ct. Rep. 950; Wolcott v. Heath, 78 III. 433; Pixley v. Boynton, 79 Ill. 351; Logan v. Brown, 81 Ill. 415; Cole v. Milmine, 88 Ill. 349; Appleman v. Fisher, 34 Md. 540; Williams v. Tiedemann, 6 Mo. App. 269; Cassard v. Hinman, 1 Bosw. (N. Y.) 207; Tyler v. Barrows, 6 Robt. (N. Y.) 104; Kingsbury v. Kirwin, 43 N. Y. Super. Ct. 451; Kahn v. Walton, 46 Ohio St. 195; S. C., 20 N. E. Rep. 203; Brua's App., 55 Pa. 294; Smith v. Bouvier, 70 Pa. 325. Nor is a future sale, with the privilege reserved on either side to execute the contract or not, necessarily an illegal contract. "The vendee of goods may expect to produce or acquire them in time for a future delivery, and while wishing to make a market for them, is unwilling to enter into an absolute obligation to deliver, and therefore bargains for an option which, while it relieves him from liability, assures 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 v. Benedict, 70 N. Y. 202; S. C., 26 Am. Rep. 573; Brown v. Hall, 5 Lans. (N. Y.) 177; Perryman v. Wolffe, 93 Ala. 290; S. C., 9 So. Rep. 148; Kirkpatrick v. Bonsall, 72 Pa. 155; Maxton v. Gheen, 75 Pa. 166. It makes no difference that the transaction is a speculative one: Stewart v. 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 exercised, by an actual delivery and receipt of the subject matter, the contract is valid: Sondheim 2. Gilbert, 117. Ind. 71; Rumsey r. Berry, 65 Me. 570; Farnum 7. Pitcher, 151 Mass. 470; S. C., 24 N. E. Rep. 590; Jones . Shale, 34 Mo. App. 302; Noyes . Spaulding, 27 Vt. 420. The delivery need not be manual; it may be symbolical, by means of warchouse receipts, bills of lading, or the like: Fisher 2. Fisher (Ind.), the principal case, 36 N. E. Rep. 296; Farnum . Pitcher, supra; Gregory v. Wendell, 39 Mich. 337.

II. 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, this amounts in legal effect to a mere wager on the price of the 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 commodities on which their wagers are laid, without regard to actual values, and by methods calculated to promote their own profit at the expense or ruin of others, without reciprocity of benefit, And, besides these evils, there are others, more immediate to the parties, culminating from time to time in loss of fortune and character, defalcations, crime and domestic misery, evils which, though they do not always follow, yet follow so often that they have not been overlooked by the courts:" Flagg v. Gilpin, 17 R. I. 10; S. C., 19 Atl. Rep. 1084; Grizewood . Blane, 11 C. B. 525; Barry. Croskey, 2 J. & S. 1; Bartlett. Smith, 13 Fed. Rep. 263; Embrey . Jamison, 131 U. S. 336; S. C., 9 Sup. Ct. Rep. 776; Cobb v. Prell, 16 Cent. L. J. 453; Justh. Holliday, 17 Cent. L. J. 56; Lee v. Boyd, 86 Ala. 283; S. C., 5 So. Rep. 489; Pickering v. Cease, 79 Ill. 328; Cothran . 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. (Ν. Υ.) 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 execution, 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, I 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 Ill. 351; Carroll v. Holmes, 24 Ill. App. 453; Benson v. Morgan, 26 III. 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. (Ν. Υ.) 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. & Ν. 867.

IV. In consequence 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 element 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, seems 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: Rosewarne 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 entering 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 Ill. 496; S. C., 16 N. E. Rep. 646; Wheeler v. 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 v. Buel (Ohio), 30 N. E. Rep. 821; 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 were actual buyers and sellers. The illegal intent pervades the whole course of dealing: Fareira v. Gabell, 89 Pa. 89; Miles v. Andrews, 40 III. App. 155. The question is purely between the broker and the customer, 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.

If, however, the broker is ignorant of the illegal design of