Donovan v. Daiber

Grant, J. (after stating the facts). The case comes squarely within Gregory v. Wendell, 40 Mich. 432, where contracts of this character were ably discussed by the late Justice Cooley, unless the act of 1887 (3 Comp. Laws 1897, § 11373) makes such contracts as were approved in that decision void. The statute is printed in the margin.1 [53] Under the plaintiff’s testimony, he did not know whether defendant had 5,000 bushels of wheat to sell, and did not ask him. A party may make a binding agreement to sell that which he does not have. He may go into the market and purchase it, and he cannot defend, when called upon to perform his contract for future delivery, by saying, “ I did not have the property when I made the contract.” Commission merchants and others make such contracts, expecting to go into the market and buy. The same rule applies to his purchases. Both parties, under the testimony of plaintiff., understood that actual delivery of the property bought or sold upon these orders could be enforced. This agreement brings it without the statute. If, however, it was understood that this was a mere evasion of the statute, and neither party contemplated an actual sale or delivery, then the transaction was void, and plaintiff could not recover. Upon these points there was a conflict of testimony, which was submitted to the jury upon the theory of both sides. The jury sustained the plaintiff’s version, and there was testimony to sustain it. It is quite likely, and in fact very probable, that this was an evasion of the statute, and was so intended by the parties. But, where there is a conflict of testimony, the question becomes one for the jury, and appellate courts cannot interpose their judgment for that of a jury. Carland v. Telegraph Co., 118 Mich. 369 (76 N. W. 762, 43 L. R. A. 280). We cannot say that this was a mere wager, based upon the rise and fall of prices. Under the defendant’s contract to sell, as stated by plaintiff, plaintiff, or his correspondent in Chicago, could have recovered damages for failure to perform the contract. So, if the seller in Chicago had declined delivery to defendant on his purchase, defendant could also have recovered damages for failure to do so. Under defendant’s testimony, the contract was contra bonos mores, and within the prohibition of the statute. It ip not enough^that defendant intended merely a speculation upon margins, — a mere wager upon the rise or fall of prices, — and no delivery. Plaintiff must also have par [54] ticipated in that intention. Wagner v. Hildebrand, 187 Pa. St. 136 (41 Atl. 34); In re Taylor & Co.’s Estate, 192 Pa. St. 304 (43 Atl. 973, 18 L. R. A. 855); Anthony v. Unangst, 174 Pa. St. 10 (34 Atl. 284); Peters v. Grim, 149 Pa. St. 163 (24 Atl. 192, 34 Am. St. Rep. 599); Counselman v. Reichart, 103 Iowa, 430 (72 N. W. 490); Pratt v. Boody, 55 N. J. Eq. 175 (35 Atl. 1113); Waldron v. Johnston, 86 Fed. 757; Embrey v. Jemison, 131 U. S. 336 (9 Sup. Ct. 776); Whitesides v. Hunt, 97 Ind. 191. Judgment affirmed. The other Justices concurred. Footnotes [1] Comp. Laws 1897, § 11373: “That it shall be unlawful for any corporation, association, firm, copartnership, or person to keep, or cause to be kept by any agent or employé, within this State, any office, store, or other place wherein is conducted or permitted the pretended buying or selling of the shares of stocks or bonds of any corporation, or petroleum, cotton, grain, provisions, or other produce, either on margins or otherwise, without any intention of receiving and paying for the property so bought or of delivering the property so sold; or wherein is conducted or permitted the pretended buying or selling of such property on margins, when the party selling the same, or offering to sell the same, does not have the property on hand to deliver upon such sale, or when the party buying any of such property, or offering to buy the same, does not intend actually to receive the same if purchased or to deliver the same if sold; all such acts, and all purchases and sales, or contracts and agreements for the purchase and sale, of any of the property aforesaid in manner aforesaid, and all offers to sell the same or to purchase the same in manner aforesaid, as well as all transactions in stocks, bonds, petroleum, cotton, grains, and provisions in the manner as aforesaid, on margins, for future or optional delivery, are hereby declared gambling and criminal acts, whether the person buying or selling, or offering to buy or sell, acts for himself or as an agent, employé, ®r broker for any firm, copartnership, company, corporation, association, or broker’s office.”