Overbeck v. Roberts

Mr. Chief Justice Bean delivered the opinion. 1. The contention that the complaint does not state facts sufficient to constitute a cause of action, because the number of pounds of cotton in a bale, or the aggregate number of pounds bought or sold by the plaintiff on defendant’s account, or the price per bale, is not stated, comes too late after verdict. The pleadings are framed, and the trial evidently proceeded, on the assumption that a bale of cotton on the exchange and in the market contains 500 pounds. The complaint avers that 100 bales at so much per pound amounted to a certain sum and the answer contains substantially a similar averment. It is alleged in the answer that by plaintiff’s closing out the transaction on February 1, 1904, instead of on the 18th of that month, the defendant lost the difference between $0.1399 and $0.1387 per pound on 100 bales, to wit, $60 — a result which could be obtained only by assuming that a bale of cotton contains 500 pounds. In addition to this, a statement of account was rendered to the defendant by the plaintiff in which the transaction between the parties was set out in a similar manner. 2. The telegrams offered and admitted in evidence were competent as tending to show that the transaction between plaintiff and defendant contemplated an actual and bona fide sale and purchase of cotton and was not a mere dealing in differences. The plaintiff had a leased wire from Chicago to its office in Portland, by means of which the telegrams were sent direct to its agent and memoranda made of them. When the plaintiff received the order of January 15, 1904, from defendant, to sell [41] 100 bales of July cotton, it immediately wired to its agents, Logan & Bryan, who had offices in Chicago and New York: “Sell 100 July cotton,” and when it received the order to buy on February 1, it wired them: “Buy 100 July cotton market.” The telegrams offered were the original memoranda made at the time, and were competent evidence for the purpose stated. 3. A contention is made that the pleadings and evidence show that the transactions between plaintiff and defendant were merely dealings in futures or a gambling in differences, and that no actual purchase or sale of a commodity was contemplated, but the understanding was that a settlement was to be made on the differences in the market quotations from day to day until the deal was closed, and- therefore the transaction was illegal and void, and will not be enforced by the courts. No such facts are pleaded in the answer, nor was any request made for findings to that effect. The answer and requested findings assume and state that a sale of cotton was made by plaintiff on defendant’s account “on the New York Cotton Exchange,” and the evidence is all to the effect that the transaction was actual and bona fide. The witnesses for the plaintiff, and there was no contradiction of them, testify that the transactions between plaintiff and defendant were actual and bona fide sales of cotton on the New York Cotton Exchange; that plaintiff had a private wire from its office in Portland to its agents in Chicago, and, when an order was given it to sell or buy, it telegraphed the order to them and they executed it on the exchange, and the price of the execution was wired back to the plaintiff. It therefore appears that the purchase and sale made by the plaintiff on defendant’s account was an actual and bona fide transaction on the New York Cotton Exchange and presumably in accordance with its rules and regulations. Such transactions have been uniformly held valid and legal on their face, and not mere wagering contracts or dealing in differences, and the burden of proving that they are invalid, as a mere cover for differences, is on the party who makes the assertion, and defendant offered no evidence on that subject: Chicago Board of Trade v. Christie G. & S. Co. [42] 198 U. S. 236 (25 Sup. Ct. 637: 49 L. Ed. 1031); Clews v. Jamieson, 182 U. S. 461 (21 Sup. Ct. 845: 45 L. Ed. 1183); Bangs v. Hornick (C. C.), 30 Fed. 97; Henning v. Boyle (C. C.), 112 Fed. 397. We are of the opinion that, under the facts of this case, the. court could not declare the transaction to be illegal and void. 4. The contention that the findings of fact are insufficient because the weight of the bales of cotton alleged to have been bought and sold by plaintiff on defendant’s account, either singly or in the aggregate, is not given, is disposed of by what has already been said about the sufficiency of the complaint. There is no difficulty, as,we read the findings, in ascertaining from them what the findings of fact were or the conclusions of law which the court drew from such facts, and this is all the statute requires when it provides that the findings of fact and conclusions of law shall be separately stated: Weissman v. Russell, 10 Or. 73. There was no dispute as to the second cause of action, and plaintifE was not required to prove it. The complaint -sets out the facts constituting the cause of action and alleges a balance due it thereon of $55.45; the answer pleads, as a counterclaim thereto, that there is a balance of $89,.30 in plaintiff’s hands, of money advanced by defendant “over and above the sum of $55.45, due and owing to the plaintiff,” for which judgment is demanded, and when plaintiff commenced to offer evidence in support of its cause of action the defendant’s counsel stated: “We do not dispute that.” There is no error in the record, and the judgment is affirmed. Affirmed.