Wagner v. Engel-Millar Co.

Winslow, O. J. The plaintiff was a grain broker on the Chicago board of trade, the defendant a domestic business corporation located at Milwaukee. October 18, 1907, the defendant corporation telegraphed to the plaintiff an order to buy 10,000 bushels of May com at 61-| cents, and on October 21st following an order to buy another 10,000 bushels of May corn at 61J cents. Both orders were immediately executed on the Chicago hoard of trade; that is, one of Mr. Wagner’s employees went into the grain pit and found a seller and “contracted for the purchase” of 10,000 bushels of com for delivery in the following May under the rules of the board of trade, the trades being noted on cards which each broker carried for the purpose, October 29th following the defendant telegraphed the plaintiff to sell the com previously purchased, and the plaintiff sold 20,000 bushels of May com on the board of trade in the same manner at 58¿ cents per bushel, entailing a loss of $637.50, for which loss (less a credit of $18.75) this action is brought. Both Mr. Wagner and his manager testified that, while the purchases were margin transactions, there was an actual intent to deliver the corn purchased in each ease; that deliver-' ies were expected to be made by warehouse receipts representing com actually stored in elevators; that had the selling [488] order not been received, warehouse certificates for the 20,000 bushels would have been delivered in May, but on account of the order to sell there was no actual delivery. The defendant’s manager, Mr. Millar, testified that he had no idea that any corn would be delivered, but that he supposed it to be a mere bet on future prices to be settled by payment of differences. The question, of course, was whether these board of trade transactions were valid transactions or mere gambling contracts, and this depends upon the intention of the parties. If both parties, i. e. Mr. Wagner and Mr. Millar, intended no actual delivery, but merely a wagering contract to be settled by the payment of differences, then the whole transaction was a gambling contract and void and there can be no recovery here. If, on the other hand, either Mr. Wagner or Mr. Mil-lar intended in good faith that the contracts of purchase should be performed by delivery of the corn or warehouse receipts therefor (which is the equivalent thereof), the transaction was a valid one and the plaintiff is entitled to recover. This is very well established by the statute (sec. 2319a, Stats. 1898) and by the decisions thereunder cited and reviewed in Carson v. Milwaukee P. Co. 133 Wis. 85, 113 N. W. 393. The question whether there was such good-faith intent on the part of either party is not settled by the statement of the parties themselves, although such evidence is to be considered, but all the facts and circumstances throwing light on the intent are to be considered. The fact that the transactions were margin transactions, and the further fact that they were board of trade transactions, are. entitled to be considered, because of the well known fact that very many, if nót a large majority, of such transactions are wagering transactions entered into with no intent to deliver the actual grain, but only to settle by the payment of differences. Nevertheless these facts are not conclusive. The intent to make actual delivery may exist in such transactions. - [489] There was direct and very positive evidence that it did exist on the part of Mr. Wagner in the transaction under investigation here; and we cannot say that it is incredible or that all the reasonable probabilities and the overwhelming weight of the evidence are against the existence of such an intent. Hence the question was for the jury. Bannon v. Ins. Co. of N. A. 115 Wis. 250, 91 N. W. 666. The question was submitted to the jury without error, and the jury found the existence of the intent to make actual delivery on the part of the plaintiff. There being sufficient evidence to go to the jury upon that question, judgment for the plaintiff should have been entered on the verdict. By the Oourt. — Judgment reversed, and action remanded with directions to enter judgment on the verdict for the plaintiff in accordance with the prayer of the complaint.