Skinner v. Osgood

Mr. Presiding Justice Sears delivered the opinion of the court. But two questions need be considered upon this appeal, viz: first, whether this contract comes within the prohibition of Sec. 130 of the Criminal Code, as a gambling contract, and second, whether the error in the notice of election to sell the stock according to the provisions of the contract will bar a recovery. In the determination of the first question indicated, we regard the recent decision of the Supreme Court in Wolf v. Nat. Bank, 178 Ill. 85, as controlling. In that case, which was merely a contract of purchase, with privilege of reselling at option of the purchaser, the court said: “ In other words, the bonds were turned over by the bank to the plaintiff at a certain stipulated price, with the distinct agreement that the plaintiff had the right, during the month of January, 1897, to elect whether he would keep them or return them to the bank, and in case he concluded to return the bonds, he was entitled to receive his money back" with interest. The transaction was one both reasonable and proper, and one not within- or prohibited by the statute. Indeed, it contains no element of a gambling contract.” In the case here, as in the one cited, the privilege of reselling upon election was made a condition to the original transaction, and without such privilege it is to be concluded from the evidence that the stock Avould not have been accepted by appellants. Indeed, the facts of this case are much stronger for the legality of the contract than were the facts in the case cited; for in this case the giving of the option to resell Avas an incident to an otherwise perfectly valid contract, including many important elements of transfer of other property, etc. Under the authority of Wolf v. Hat. Bank, we hold that the part of this contract granting the privilege to resell is but an incident or condition to a valid contract, and that it is not within the prohibition of the statute. The only other question to be considered is as to the sufficiency or necessity of the notice. It seems apparent from an inspection of the notice, that it was intended to require a carrying out of the contract to repurchase all of the shares of stock in question, viz., 650 shares, and not merely 625 shares, the number mentioned in the latter part of the notice, and that the latter mention was a mistake. The shares specified in the notice in detail amount to 650, and the expression “ the 625 ” can only be read intelligently as referring back to the shares specified, i. e., 650. It is contended by counsel that the court can not disregard the mistake and read the notice as intended by the parties. If the mistake was latent, not apparent-on the face of the instrument, and such that it would be necessary to resort to evidence dehors the writing to correct it, the contention would be s ound; but when, from an examination of the writing itself, the intention of the parties can be clearly ascertained, a court of law will give effect to the intention, notwithstanding there may be some language used which, taken by itself, would not authorize the construction adopted. Mercantile Ins. Co. v. Jones, 87 Ill. 199; Holmes v. Parker, 25 Ill. App. 225; Bishop on Contracts, Sec. 383, 397, 420. We are of opinion that the notice should be construed as an offer of the 650 shares of stock. But aside from the terms of the notice, we do not regard the sufficiency of it as vital to a right to recover. Appellee, by refusing to carry out his contract upon the ground that it was illegal, and that Skinner had entered into competition with him in the coal business, waived any necessity of a notice under the provisions of the contract. After he had announced his refusal to comply with the contract, a demand would have been of no consequence. Lyman v. Gedney, 114 Ill. 388. The many decisions in insurance suits as to waiver of notice would seem by analogy to apply here. The trial court held upon propositions of law submitted, and we think rightly, both that the notice was sufficient and that the necessity of any notice was waived. The judgment of the Circuit Court is reversed and the cause is remanded, with directions to the Circuit Court to enter a judgment in favor of appellants and against appellee for the amount shown by the evidence to be due to appellants upon the contract, viz., $32,500, with interest at the rate five per centum per annum from October 1, 1891. Reversed and remanded with directions.