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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 exccution, 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 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 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
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: 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 Ill. 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 Ill. 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
his customer, and acts in good faith, the contract is good as to him, and he can recover his advances, commissions and losses: Rountree . Smith, 15 Repr. 609; Irwin v. Williar, 110 U, S. 499; S. C., 4 Sup. Ct. Rep. 160; Lehman v. Feld, 37 Fed. Rep. 852; Edwards . Hoeffinghoff, 38 Fed. Rep. 635; Boyd v. Hanson, 41 Fed. Rep. 174; Murry v. Ocheltrec, 59 Iowa, 435; S. C., 13 N. W. Rep. 411; Williams v. Carr, 80 N. C. 294; Potts v. Dunlap, 110 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: Yerkes v. Salomon, 11 Hun. (N. Y.) 471; Cassard v. Hinman, 6 Bosw. (N. Y.) 14; Hentz v. Miner, 38 Hun. 428; S. C., 12 N. Y. Suppl. 474. All the circumstances surrounding the transaction, and the conduct of the parties with reference to it, are legitimate evidence on this question: Boyd v. Hanson, 41 Fed. Rep. 174; Hill v. Johnson, 38 Mo. App. 383. The general course of dealing between the parties is some evidence, though not conclusive, of the nature of the transaction in question: Watte v. Costello, 40 Ill. App. 307; Lower. Young, 59 Iowa, 364; S. C., 13 N. W. Rep. 329; Kenyon v. Luther, 4 N. 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 . Hewitt, 8 Ill. App. 467. But it is not allowable to give in evidence special instances of illegal transactions, either with the party to the contract, or with third persons: Gruner v. Stucken (La.), 3 So. 338; Dwight v. Badgley, 60 Hun. (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 be evidence of their original intent: Clarke v. Foss, 7 Biss. C. Ct. 540.
The 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 if further margins are not put up on notice, the
contract may be treated as filled, and the other party may recover the difference between the contract and market price, without any performance or offer to perform on his part, they will make a contract good on its face illegal and void: Lyon v. Culbertson, 83 Ill. 33; S. C., 25 Am. Rep. 349. But if the illegal intent be otherwise proven, the rules cannot be invoked to show that, according to them, actual delivery must be made: Mackey . Rausch, 60 Hun. (N. Y.) 583; S. C., 15 N. Y. Suppl. 4.
The ability of the parties to perform their contracts is a very material circumstance; for if their means are wholly dispro portioned to the value of the goods purchased, the inference is strong that the transaction is not bona fide: Beveridge v. Hewitt, 8 Ill. App. 467; Curtis . Wright, 40 Ill. App. 491; Myers . Tobias (Pa.), 16 Atl. Rep. 641; S. C., 24 W. N. C. 432; Gaw v. Bennett, 153 Pa. 247; S. C., 31 W. N. C. 557; 25 Atl. Rep. 1114; Watte 7. Wickersham, 27 Neb. 457; S. C., 43 N. W. Rep. 259. It has also been held that when the sum deposited with the broker bears no proper proportion to the value of the stock ordered, the inference is that a gambling contract was intended; but this is hardly consonant with the weight of authority: Patterson's App. (Pa.), 13 W. N. C. 154.
When the evidence showed that the brokers were willing to buy or sell for the customer at their own risk without inquiry as to his financial ability, so long as he put up the necessary "margins;" that when he failed to advance further funds, the brokers, without offering to deliver or demanding the price of the cotton, promptly closed out the contract and demanded the difference between the contract and market price, the facts show a gambling contract: Phelps v. Holderness, 56 Ark. 300; S. C., 19 S. W. Rep. 921. So, evidence that the customer was not a refiner of oil, or one who would buy for his own consumption; that he had not sold the oil when he exercised his option; that he did not intend to exercise it if the market price fell below that fixed in the agreement, joined to proof that he was financially unable to take and pay for the whole amount of oil he had contracted for, leads to the conviction
that the contract was a gambling one: Kirkpatrick v. Bonsall, 72 Pa. 155. But when the customer pays a part of the purchase price, leaves stock with the broker till paid for, and directs him to sell it again, the contract is valid: Eggleston ". Rumble, 66 Hun. (N. Y.) 627; S. C., 20 N. Y. Suppl. 819. And when the wheat purchased is delivered in the form of warehouse receipts, which would entitle the purchasers to actual delivery of it on presentation thereof, the transaction is good: Fisher v. Fisher, the principal case (Ind.), 36 N. ERep. 296.
Ordinarily, the burden of proof lies on the party asserting the illegality of a contract good on its face: Benson v. Morgan, 26 Ill. App. 22; Mohr v. Miesen, 47 Minn. 228; S. C., 49 N. W. Kep. 862; Harris v. Tumbridge, 83 N. Y. 92. But though an illegal intent will not be presumed: Story v. Salomon, 71 N. Y. 420; yet experience has so proved the likelihood of illegal intent in future contracts, that the tendency seems now to be to put the burden of proof on the one who seeks to enforce the contract, at least when a doubt has been cast upon it by the testimony of the opposite party: Wheeler v. McDermid, 36 Ill. App. 179: First Nat'l Bk. v. Oskaloosa Co., 66 Iowa, 41; S. C., 23 N. W. Rep. 255; Sprague v. Warren, 26 Neb. 326; S. C., 41 N. W. Rep. 1113; Cobb . Prell, 16 Cent. L. J. 453; Barnard v. Backhaus, 52 Wis. 593.
VI. In Illinois, the statute against dealing in fntures is peculiarly strict. "Whoever contracts to have or give to himself or another the option to sell or buy at a future time any grain or other commodity, stock of any railroad or other company, or gold.... shall be fined. . . . and all contracts made in violation of this section shall be considered gambling contracts, and shall be void :" Cr. Code Ill., § 130. It is the rule under this statute that any future contract, other than an actual sale, is void: Webster v. Sturges, 7 Ill. App. 560; Locke v. Fowler, 41 Ill. App. 66; Schneider v. Turner, 130 Ill. 28; S. C., 22 N. E. Rcp. 497; Aff. S. C., 27 Ill. App. 220; Pearce v. Foote, 113 Ill. 228; Corcoran v. Coal Co., 138 Ill. 390; S. C., 28 N. E. Rep. 759; but see Richter v. Frank, 41 Fed. Rep. 859. The same seems to be the rule in Iowa: Osgood