Cummiskey v. Williams

Lewis, P. J., delivered the opinion of the court. The first count in the petition charges that the plaintiffs, doing business as partners, on January 27, 1882, at the special instance and request of the defendant, bought for him 10,000 bushels of wheat, to be delivered in March following, at the price of $14,493.75, and that on February 10, they sold the same for the defendant at a loss of $1,468.75, of which the defendant has paid them $1,427.25. That the balance of said loss, with the plaintiff’s commissions of twenty-five dollars, amounting in all to $66.50, remains unpaid, for which they ask judgment. The second count sets up a like purchase and sale of 10,000 bushels of wheat, involving a loss of six hundred and fifty dollars, for which sum, with twenty-five dollars for [608] commissions, the plaintiffs ask judgment. The answer is a general denial. A jury found for the defendant on both counts. The defendant claimed that, as to the first transaction, there was a balance due from him, when the plaintiffs proposed that if he would pay them five hundred and fifty dollars, it would be accepted as a settlement in full; that he paid the amount, and they gave him a full receipt and discharge. As to the second deal, the defendant denied that he had ever requested or authorized it. The testimony given by the parties respectively on these two points was flatly contradictory. The instructions fairly submitted the issues thus raised, and as to them, the finding of the jury leaves nothing for our review. Upon a careful examination of the bill of exceptions, we fail to find a particle of testimony on either side, tending to show that the transactions between the parties were mere wagerings or speculations upon a fluctuating market, without any actual purchase, sale, or delivery of a mercantile commodity. The parties and witnesses testified about nothing whatever hut the “buying” and “selling” of wheat. Not a word is said by anybody about any agreement, pretense, or understanding on either side, or anything short of actual purchases and sales. Purchase and sale, duly consummated, include delivery, by implication. There is no warrant in this record of testimony for assuming anything less. In Williams v. Tiedemann (6 Mo. App. 269), this court said: “The law will not presume against the validity of a contract relating to a proper subject matter. The burden of proof is upon him who alleges its invalidity.” The circuit court gave, nevertheless, of its own motion, the following instruction: “If the-jury believe from the evidence that the plaintiffs and defendant either agreed, or mutually understood, at the time of the transactions in evidence, or either, that the same were to be conducted as mere [609] wagers on the price of wheat, or that no wheat should or would be actually delivered on such alleged agreement for the purchase of wheat, but that there should be a settlement of differences in price, then any such transaction would be illegal, and no recovery could be had herein on account thereof.” This was, of course, erroneous. It enabled the jury to base their verdict on a mere guess, where there was no evidence before them. It does not help the matter that the plaintiffs asked for an instruction, which was refused, to the effect that the wagering must have been intended by both parties, in order to vitiate the contract. This was, at most, but an indirect admission that there was some evidence on that point. But the court had no authority to act upon such an indirect admission, when the contrary fact was plainly before it. If the instruction given had been justified by the evidence, the plaintiffs would have been entitled to the one they asked for, since it contained a proper qualification which was omitted from the one given. Williams v. Tiedemann, supra. Thus the error was duplicated by the refusal. The court gave the following instruction for the defendant : “If the jury believe from the evidence that the plaintiff, Cummiskey, promised the defendant that he, or they, meaning the plaintiffs, would take a deal for the purpose of recovering to defendant the amount of money lost by him, and that they, or either of them, did take such a deal, then the defendant is not liable for any margins or losses arising therefrom, and the jury, if they so find, should return a finding for the defendant on the second count herein.” The only evidence on which this instruction was founded, appears in the following statements of the witnesses : “ Commiskey said he would take a deal for me, the defendant, and try and make my money back. Mr. Cummiskey wrote me a letter, saying he had made a deal for me and had lost some money. ” “ Cummiskey told Williams that he would taiie a deal for him and try [610] and make Ms money back for him.” A letter, described as lost, “ was signed by James Cnmmiskey, and it said that he had made a deal for the defendant and had lost money.” Not a word in these expressions implies a guaranty by Cummiskey that the proposed new deal should be successful, and should reimburse the defendant in his' previous loss. There was to be a repetition of the experiment, with the hope for improved results; nothing more. We can see no reason for telling the jury that if the experiment failed, the plaintiffs could not recover for their outlay in the defendant’s behalf, unless the instruction was coupled with a hypothesis that the defendant either did not accept the plaintiffs’ proposal, or that he accepted it with the understanding that the new deal was to be at the plaintiffs’ risk. The judgment must be reversed, and the cause remanded. The other judges concur.