J. B. Lyon & Co. v. Culbertson, Blair & Co.

Mr. Justice Walker delivered the opinion of the Court: We learn, from this record, that appellees, as partners in the firm of Culbertson, Blair & Co., brought suit against appellants, also partners, doing business under the ñamé of J. B. Lyon & Co., to recover damages for an alleged failure to perform contracts for the purchase of a quantity of wheat. There were several contracts, alike in their terms, except as to amounts and dates, and they were signed by different persons. This is a copy of one of them: “ Chicago, August 14, 1872. “We have this day bought of Culbertson, Blair & Co. 10,000 bushels of No. 2 spring wheat; in store, at $1.57& per bushel, to be delivered, at sellers’ option, during August, 187,2. This contract is subject, in all respects, to the rules and regulations of the board of trade of the city of Chicago. J. B. Lyon & Co., C.” The rules and regulations referred to are embraced in— “Bule IX. Margins on Time Contracts. “ Section 1. On all time contracts, made between members of the association, deposits for security and margin may be demanded by either or both parties; said margin not to exceed ten (10) per cent on the value of the property bought or sold on the day it is demanded. All such deposits to be made with the treasurer of the association, unless otherwise agreed upon by the parties. Said deposits and margins may be demanded on and after the date of contract, and from time to time, as may be necessary to fully protect the party calling for the same. When margins are demanded, the party called upon shall be entitled to deduct from the margin called any difference there may be in his favor between the market price and the contract price of the property bought or sold. Any deposit made to equalize the contract price with the market price shall be considered as a deposit for security, and not margin. “ Sec. 2. Should the party called upon, as herein provided for. fail to respond within the next banking hour, it shall thereafter be optional with the party making such call, by giving notice to the delinquent, to consider the contract filled at the market value of the article at the time of giving such notice; and all differences between said market value and the contract price shall be settled the same as though the time of said contract had fully expired: Provided, however, that, when the call is made during the general meeting of the board between 11 A. Id. and 1 P. M., the deposit shall be made before 2 o’clock of the same day.” Under these contracts, deposits and margins were put up by the parties in conformity to the rules, from time to time. On the 19th day of August, 1872, the market for No. 2 spring wheat opened at from $1.55 to $1.57, and declined during the day, closing, after exchange hours, at from $1.44 to as low as $1.38. On the 20th, the market opened at from $1.27 to $1.34, and fell rapidly during business hours. Between 11 and 1 o’clock, it was as low as $1.10 to $1.11 per bushel. It is claimed that, on the' morning of the 20th, appellees became entitled to further deposits, and thereupon, by written notice sent to the office of the buyers, demand was made of Lyon & Co. for further margins, but failing to respond to the demand within the next banking hour, Culbertson, Blair & Co. elected, under the rules, to consider the contracts filled, and charged to account of Lyon & Co. the difference between the purchase price and $1.11^-, and notified appellants thereof. This difference is the matter in dispute between the parties. On a trial in the court below, the jury found for plaintiffs the difference as claimed. A motion for a new trial was overruled, and judgment rendered on the finding, and this appeal is brought by defendants. The contract signed by Anderson has been adjusted, and hence it is not necessary to be considered; but the contracts signed by Templeton, as the purchaser, were admitted in evidence against the objections of appellants. The court excluded evidence offered by appellees to show a usage among the members of the board of trade to demand of the broker the name of his principal at the time of the purchase, and failing to do so, it was regarded as an election by the seller to look alone to the agent for a fulfillment of the contract. The proper foundation for the introduction of this evidence was laid. Inasmuch as the great mass of commercial business is transacted by men pressed by their affairs, and •'who are not in the habit, even if time would permit, of reducing their agreements to writing, beyond a mere memorandum, the courts are compelled to look to the usages of trade or business to learn the real intention of the parties. If proof of such usages was not allowed, it is believed that, in a large number, if not the greater portion, of commercial transactions, the intention of the parties would he defeated, instead of being enforced, when differences should occur between them. Where there is a well known usage which obtains in trade, it must be presumed that all who are engaged in that business, where it prevails, contract with a view to it, unless they exclude the presumption by their contract. Hence, it has been repeatedly held by this court that a usage may be proved to interpret the otherwise indeterminate intention of the parties, and to ascertain the nature and extent of their contracts, not from their express stipulations, but from mere implication and presumptions, and acts of doubtful or equivocal character; but to have commercial usage take the place of general law, it must be so uniformly acquiesced in for such a length of time that the jury will feel themselves constrained to find that it entered into the minds of the parties and formed a part of the contract. Dixon v. Dunham, 14 Ill. 324; Crawford v. Clark, 15 ib. 561; Munn v. Burch, 25 ib. 35; Fay v. Strawn, 32 ib. 295; Deshler v. Beers, 32 ib. 368; Home Insurance Co. v. Favorite, 46 ib. 263; Turner v. Dawson, 50 ib. 85. Other cases might be cited in illustration of the rule, were not those referred to amply sufficient for the purpose. Were it not for the terms and conditions of the contracts as expressed in the rules of the board of trade, the case would be exceedingly simple and free from all difficulty. We presume all persons in the profession know that when, on the face of these agreements, the delivery of the wheat and the payment of the money were concurrent acts, to be performed by the parties at one and the same time, neither party could put the other in default without performing his part of the agreement, or offering to perform it. Had the time elapsed for performance, all know that appellees would have been compelled to tender the wheat, and appellants to have refused to receive and pay for it, before • the former could have sued and recovered. Pars, on Cont. vol. 2, p. 189; 1 Chit. PI. 351. This is illustrated by every well prepared precedent of a declaration on such contracts, whatever may be the form of action. But the parties having incorporated the rules of the board of trade into their agreement, the question arises as to its effect on the contract. It in terms provides that, when either party shall be in default in putting up margins, after notice and within the next banking hour, the party calling for them shall thereupon have the right to consider the contract filled at the market value at the time of giving such notice, and all differences between such market value and the contract price shall be settled the same as though the time for fulfilling the contract had fully expired. This, in terms, does not require an offer, or an ability or willingness to perform on either part. It only, in terms, requires a mental operation, unaccompanied with any physical act. Until the expiration of the hour, and for a period of time afterwards, the party claiming a default has, by the terms of the rule, the option to consider the contract filled or not, as he may choose. Had the agreement required the party, before he exercised the option, to have made an offer, or at least have shown that he had the ability to fulfill his part of the agreement, and was willing to do so, then the contract would have conformed to legal principles; but, under the terms of this contract, appellees were not required to have a bushel of grain they could have delivered at the place of performance. It is true, the contract speaks of wheat “in store,” but neither wheat nor warehouse receipts were offered, nor was it shown that appellees had any wheat in Chicago, and it could not have been in the contemplation of the parties to deliver or receive it elsewhere, or it would have been so stated in the contract. The use of the words, “ in store,” we understand to mean, that it was, at the time of delivery, to be in store in Chicago. The fact that no wheat was offered or demanded, shows, we think, that neither party expected the delivery of any wheat, but, in case of default in keeping margins good, or even at the time for delivery, they only expected to settle the contract on the basis of differences, without either performing or offering to perform his part of the agreement; and if this was the agreement, it was only gaming on the price of wheat, and if such gambling transactions shall be permitted, it must eventually lead to what are called “ corners,” which engulf hundreds in utter ruin, derange and unsettle prices, and operate injuriously on the fair and legitimate trader in grain, as well as the producer, and are pernicious and highly demoralizing to the trade. A contract, to be thus settled, is no more than a bet on the price of grain during or at the end of a limited period. If the one party is not to deliver or the other to receive the grain, it is, in all but name, a gambling on the price of the commodity, and the change of names never changes the quality or nature of things. It has never been the policy of the law to encourage, or even sanction, gaming transactions, or such as are injurious to trade, or are immoral in their tendency; and the old maxim, that courts will always suppress new and subtile inventions in derogation of the common law (Branch’s Principia, 71), would be applicable to such contracts. This seems to be a subtile invention to abrogate well established, fair and just principles of the law of contracts, and not only so, but to the great injury of fair and legitimate trade. Here, there was surrendered to appellees the deposit of §2300, and the jury have found a verdict of §5700, making in all $8000 for compensation for damages sustained, when, so far as the evidence shows, appellees had no wheat they could have delivered, in fulfillment of the contract, nor does it appear that they ever expected to deliver a bushel under this contract. They do not show that they have lost a dime, or that they are liable to lose anything under this contract. Why, then, say appellees should recover this large sum? All know that it is a fundamental rule that a party can not recover more than a compensation equal to his loss by any injury he may have sustained, except where punitive damages are given. There is no evidence that appellees had contracted for the wheat necessary to fill this contract, or had incurred the least expense towards its performance. Then, why allow them to recover this large sum of money? We know of no principle of justice that requires it more than that of any debt incurred without consideration to support it. It is true that appellees had put up their margins, and if, at the end of the time stipulated, the market had been against them, or if that had been the case before that time, and they had been in default, they would have lost it. The statute has prohibited, under heavy penalties, the sale of wheat on called options to buy or sell grain, because of its pernicious tendency; but it seems to us that these contracts tor the sale of grain, where neither party intends to perform them, but simply to cancel them before or at their maturity, and pay differences, are as injurious to trade and fully as immoral as are the sales of options. Neither belongs to fair and legitimate trade. It is claimed this wheat was again sold to ascertain the differences that should be paid. What wheat? it may be ashed. There is no evidence that appellees had any wheat that could be delivered at the place of this contract. So far as we can see, the wheat only existed in imagination; and even this imaginary wheat may have already been sold a number of times before the imaginary fulfillment of the contract, which it is claimed put appellants in default. If the contract was for an actual sale, a delivery of the grain by warehouse receipts or otherwise, it would have been necessary to offer to perform, or at least shown a readiness to perform, to have placed appellants in default, and then the difference between the selling price and the contract price would have been the fair measure of damages. Whilst the law has studiously fostered fair and legitimate trade, it has not sanctioned pernicious practices that are injurious to its votaries, and are demoralizing in their tendencies. Nor can it change the rule, that the contract may have been made in good faith, with an honest expectation that the wheat would he delivered and the money paid therefor, as the law is equally imperative that an offer, or at least a readiness, to perform must be shown by the party seeking to put the other in default. But when they, by the agreement, dispense with a. performance, or at least an offer, or readiness to perform, then they render the contract obnoxious to the law of contracts. Pickering v. Cease, 79 Ill. 328. It is this effort which stamps it as being in the nature of a gaming contract. It is this effort which characterizes the transaction, and renders it illegal. We are aware that there are cases which hold that a party may be excused by the default of the other, in the perform- • anee of a precedent act, from proving an offeror a readiness to perform on his part, before declaring the contract at an end. Nor is it claimed that, when appellants failed to put up further margins, appellees might not hax'e rescinded the contract by notifying appellants that it xvas at an end. The contract, on its face, xvas for the sale and delivery of xvheat, at a specified price, within a given time; and there was a further agreement contained in the rules of the board of trade, that the parties xvould put up margins, each to secure the other in the performance of the contract. Then, when this latter agreement was not performed by appellants, what resulted as a legal consequence? Why, manifestly the damage, only, resulting from a failure to comply xvith its requirement. It was not for a failure to receive the grain on an offer, or a readiness to deliver. And in such a case, what may be recovered? Surely nothing more than the damages sustained by appellees. And what were the damages sustained ? The proof shows they were nothing, as appellees had no xvheat that could be delivered in fulfillment of the contract. An agreement to perform several acts at different times, does not authorize a party to recover for a breach of all because the other party has refused to perform the first in the series. Suppose an owner of a lot of ground were to contract with a builder to furnish all the materials and labor, and construct for him a house on the lot; and suppose the agreement provided that the builder should commence the work at once, and complete the structure within txvelve months, and the owner was bound to pay therefor $20,000, in equal monthly installments; and the builder should enter upon the performance of the contract, and expend $1000 in materials and labor, and the owner should make default in the payment of the first installment. Does any one suppose that the builder could, even if the agreement so provided, treat the contract as filled by him, and sue for and recover the $20,000? We apprehend that no one would contend that he could. Again, suppose there should be added to such an agreement a provision that, if the builder should make default, the owner might treat the contract as fully performed by him, does any one imagine, on the default of the builder, that the owner could sue for and recover of the builder, as though he had paid him in advance, the $20,000, although he had not paid a dollar on the contract? We presume no one could say it would be legal or just to permit such a recovery. Or suppose, in such a contract, it should be agreed that the builder should furnish the materials, for which the owner should pay him, and if the owner should make default, that he should pay for all increase in their value; and suppose that, from some sudden and unexpected emergency, building materials should advance fifty per cent, would any one suppose that he could, on the default of the owner, sue him and recover the rise in their value, we will suppose $5000 or $6000, when he did not have on hand any such material, and had contracted for none, nor expended anything therefor? We apprehend that all fair-minded men would say it would be unjust and oppressive in the extreme. In the eases supposed, such has never been held to be the measure of recovery, and it seems to be obvious that the parties could not contract for such a measure of damages. It would shock the sense of justice of all right-thinking persons, and such a rule would be monstrous. All must concede, in the cases supposed, that a recovery for the labor already performed, and money expended, together with such proximate damages as the party not in default had actually sustained, would be the limit of the recovery, because that would be the injury sustained. Then the recovery would not be the sum due on the fulfillment of the contract by either party, but the amount of damages sustained by the breach of the precedent clause of the agreement. In the eases supposed, an action could not be maintained on an averment that the party not in default had fulfilled his part of the contract, although it might have stipulated he might treat it as fulfilled, but, to recover, the action would be on the breach of the precedent clause of the agreement. And this is the extent of the cases which hold that, on the breach of a precedent clause of the agreement by one of the parties, the other may terminate the contract and sue for and recover damages, without waiting for the expiration of the time for the fulfillment of the agreement, or offering or showing a readiness to perform his part of the contract. And in such case, the party not in default may recover all damages growing out of the breach of the precedent part of the agreement, and not to the same extent that he could, had he performed in full his part of the agreement, and the other had not performed his part. We fail to perceive any difference in principle between the supposed cases and the one at bar. It may be that, had the declaration counted alone for a breach of the agreement to put up margins, and appellees had proved that they had sustained damage, by having wheat on hand to deliver, or wheat actually purchased to be delivered on the contract, and on which they had sustained loss, the amount of such loss might have been recovered; but no such loss is shown. There is another class of cases which hold that the contracting parties may fix a measure of damages which either shall pay, who shall make default. But, to be legal, the sum thus agreed to be paid as liquidated damages must be reasonable, and not oppressive. If the sum thus fixed is highly penal, and unjustly oppressive, courts of justice should never enforce the payment of such exorbitant sums. Courts must treat such unjust and oppressive agreements as penalties, and refuse to enforce them. In all penal bonds there is a positive agreement to pay the sum named, if the obligor shall fail to perform the annexed condition; and yet, all know the penalty can not be collected, but only the actual damages sustained by the breach of the condition. If the damages proved equal the sum named in the bond, the recovery may be to that extent, but the recovery is for the damages, and not the penalty. In this case the conditions contained in the rules of the board of trade, if to be enforced as claimed, are highly penal, as is illustrated by the recovery below—so much so as not to be enforced. Another view may be taken of this contract. We have seen that, in case of a failure to put up margins as required, the party demanding them may elect to consider the contract as filled, and the settlement shall then be based on the difference between the contract price and the market price when the default is made. It would by no means be a forced construction, to say this contract means that, when the party elects to regard the contract as filled, if he desires to do more than to simply declare the contract at an end—if he desires to hold the other party liable for damages—he must do all things that would have been required of him in case the time for the delivery had elapsed. Had the time for delivery by one party, and payment by the other, arrived, by the terms of the contract, appellee would, it may be held, have been compelled to have tendered the wheat or warehouse receipts before they could have put appellants in default, so as to recover damages for a breach of contract. And the agreement gave the sellers the option to fix the day of delivery, and the right thereupon to demand payment, so it should be within the period limited by the contract. If such was the effect of the terms of this contract, then appellees had the right to, and were required to offer the grain, whenever they elected to treat the time as having arrived for the fulfillment of the agreement. If they elected, on the 20th of August, to treat the time as having arrived, when they would fill the contract, they should have done so precisely as though the last day had arrived within which they could make a delivery and demand payment. With this construction, appellees were bound to offer the wheat or warehouse receipts therefor, and hence, they having failed to make such an offer, they have failed to show themselves entitled to recover. - We have examined with great care the able and exhaustive argument of appellees’ counsel filed on a petition for a rehearing, but are constrained to adhere to the conclusion heretofore announced, but have modified in some respects the views heretofore expressed. For the reasons herein expressed, the judgment of the court below must be reversed and the cause remanded. Judgment reversed.