Statement of the Case.

received from Barber, on account thereof, large sums of money, representing such profits; and that it would be inequitable for White to claim that he should be relieved at the expense of Barber from the effects of the contracts for the delivery of No. 2 spring wheat in July, 1882, which remained open at the close of that month because of the non-fulfillment thereof on the part of White, while White had received profits from other contracts of a similar character, made for him by Barber, which White chose to have settled and closed, when the same resulted in profits which were to be paid to White by Barber.

Replications were put into these two answers, and, in January, 1884, the suit was removed by Barber into the Circuit Court of the United States for the Northern District of Illinois. Afterwards, it was stipulated that the money might remain in the hands of the bank until the final disposition of the cause, subject to like order by the court as if the money were paid into the registry of the court, and an order was made dismissing the bank from the litigation, as well in the suit at law commenced against it by White, as in the interpleader suit.

By a further stipulation, made in May, 1884, the testimony taken in the suit at law before mentioned, of White against Barber, to recover the $11,412.50, at the trial which took place in February, 1884, was used and introduced by the party taking the same, as his testimony on the trial of the suit in equity. Such testimony consisted of the detailed examination. of the witnesses examined on the trial of the suit at law, and of documentary testimony, the substance of which examinations and documentary testimony is given in the bill of exceptions in the suit at law, and is herein before recited. To this were added, in the suit in equity, the further depositions of White and Barber, taken therein in May, 1884. In these supplementary depositions, each party goes over with greater particularity the matters previously testified to by him, as set forth in the bill of exceptions; but nothing is substantially added throwing light upon the merits of the dispute. By the same stipulation there was put in, as part of the testimony on behalf

VOL. CXXII-27

Citations for Defendant in Error.

of Barber, a copy of the proceedings and judgment in the suit at law above mentioned, brought by White against Barber, to recover the $11,412.50.

In May, 1884, a final decree was made in the suit in equity, adjudging that Barber was entitled to the $6700, and ordering that it be paid to him. From that decree White has appealed to this court.

Mr. L. M. Ninde for plaintiff in error cited in both cases: Tenney v. Foote, 95 Ill. 99; Pickering v. Cease, 79 Ill. 328; Beveridge v. Hewitt, 8 Bradw. App. Ill. 467; Lyon v. Calbertson, 83 Ill. 33; Calderwood v. McRea, 11 Bradw. App. Ill. 543; North v. Phillips, 89 Penn. St. 250; Barnard v. Backhaus, 52 Wis. 593; Cobb v. Prell, 15 Fed. Rep. 774; S. C. 5 McCrary, 80; Grizewood v. Blane, 11 C. B. 526, 538; Brun's Appeal, 55 Penn. St. 294, 298; Kirkpatrick v. Bonsall, 72 Penn. St. 155; Lyons Nat. Bank v. Oskaloosa Packing Co., 66 Iowa, 41; Gregory v. Wattowa, 58 Iowa, 711; Murry v. Ocheltree, 59 Iowa, 435; Pearce v. Foote, 113 Ill. 228; Flagg v. Baldwin, 38 N. J. Eq. (11 Stewart) 219; Love v. Harvey, 114 Mass. 80.

Mr. Thomas Dent in the case at law cited: United States v. Central Pacific Railroad, 118 U. S. 235; Lehman v. Strasberger, 2 Woods, 554; Gregory v. Wendell, 40 Mich. 432; Williar v. Irwin, 11 Bissell, 57; Irwin v. Williar, 110 U. S. 499, 508; Clarke v. Foss, 7 Bissell, 540; Kent v. Miltenberger, 13 Missouri App. 533; Pennock v. Dialogue, 2 Pet. 1, 16; Express Company v. Kountze, 8 Wall. 342; Holliday v. Rheem, 18 Penn. St. 465; S. C. 57 Am. Dec. 628; Deal v. Bogue, 20 Penn. St. 228; S. C. 57 Am. Dec. 702; Walbrun v. Babbitt, 16 Wall. 577; Decatur Bank v. St. Louis Bank, 21 Wall. 294; Shutte v. Thompson, 15 Wall. 151; Warren v. Hewitt, 45 Geo. 501; Wyman v. Fiske, 3 Allen, 238; S. C. 80 Am. Dec. 66; Thacker v. Hardy, 4 Q. B. D. 685; Read v. Anderson, 10 Q. B. D. 100; Denton v. Jackson, 106 Ill. 433; Wright v. Board of Trade, 15 Chicago Legal News, 239; Thorne v. Prentiss, 83 Ill. 99; Nickalls v. Merry, L. R. 7 H. L. 530, 539; Patterson v. Clark, 126 Mass. 531; Yates v. Foot, 12 Johns. 1; Ruckman

Opinion of the Court.

v. Pitcher, 1 Comst. 392, 402; Love v. Harvey, 114 Mass. 80; Wolcott v. Heath, 78 Ill. 433; and, in the Equity cause, in addition, Ex parte Rogers, 15 Ch. Div. 207; Kirkpatrick v. Adams, 20 Fed. Rep. 287; Bangs v. Hornick, 30 Fed. Rep. 97; Roundtree v. Smith, 108 U. S. 269; Gilbert v. Gauger, 8 Bissell, 214; Jackson v. Foote, 12 Fed. Rep. 37; Higgins v. McCrea, 116 U. S. 671.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

The only question involved in the suit at law is as to the correctness of the charge to the jury in the particulars specially excepted to. The proper construction of the statute of Illinois, 130 of c. 38 of the Revised Statutes, was determined by the Supreme Court of Illinois, in Wolcott v. Heath, 78 Ill. 433, in the passage from the opinion in that case quoted by the Circuit Court in its charge to the jury. According to that construction, the contracts for the sale of No. 2 spring wheat, deliverable in July, 1882, made by Barber, were not void as gambling contracts, if they were bona fide contracts for the actual sale of grain, and if the only option the seller had was as to the time of delivery, the obligation assumed by Barber being to deliver the grain at all events, with the option only to deliver it at any time before the close of business on the last day of July, 1882. That the contracts made by Barber were of that character, and were not such gambling contracts as the statute denounces, must be held to have been found by the jury under the portions of the charge specially excepted to, and under other portions of the charge contained in the record. The plaintiff did not pray for any instructions to be given to the jury, nor did he present to the court any propositions of law which he maintained the court should lay before the jury as guides to a proper solution of the questions in controversy. The general exception to the whole of the charge cannot be regarded, as it is a violation of Rule 4 of this court.

In its charge to the jury, the Circuit Court explained fully to them the theory of White, that the dealings on account of

Opinion of the Court.

which Barber paid out the moneys in question were, as between White and Barber, gambling or wager contracts and, therefore, illegal. It presented fairly to them a statement of the testimony on both sides of that question, as set forth in the bill of exceptions. It also submitted to them the question whether, in view of the testimony, the contracts in question were contracts to buy or sell at a future day, or whether they were absolute sales, in which the seller had the entire month of July, 1882, in which to perform his contracts; and it instructed them that if they should find that the dealings by the defendant for the plaintiff were options to buy or sell at a future day, their verdict should be for the plaintiff, but that if, on the contrary, they should find that such dealings were contracts by which the grain was to be absolutely delivered during the month of July, 1882, the only option being the time when, during the month, the delivery should be made, their verdict should be for the defendant. This charge was very favorable to the plaintiff, for it necessarily involved an affirmation of the propositions, that the plaintiff had a right to revoke his action in advising the tender of the No. 2 red winter wheat in fulfillment of the contracts, and had a right to revoke his express or implied assent to the appointment of the committee, under the rules of the board of trade, to determine what was a fair settling price for the wheat on the 31st of July, 1882, and had a right to recall his connection with the chancery suit brought by Barber against the board of trade, in which the validity of the contracts was recognized, and had a right to ignore the fact that he had placed Barber in the position in which, at the time of the giving of the notice of April 2, 1883, by White to Barber, Barber was not at liberty to refuse payment of the damages arising out of the non-fulfillment of the contracts, but was in danger of being expelled from the board of trade, if he persisted in such refusal.

The jury must have found, on the testimony, that the contracts made by Barber for the plaintiff at the board of trade were valid contracts, and that Barber was liable on them to either deliver the grain or pay the damages in case he failed

Opinion of the Court.

to deliver, because the court charged the jury, that, if the proof satisfied them that, by the contracts, Barber was liable to either deliver the grain or pay the damages, then the contracts were not gambling contracts, and they should find for the defendant.

We find no error in the record in the suit at law, and the judgment is affirmed.

In the suit in equity, the contention on the part of White is, that the contracts and transactions between Barber and himself were wagering contracts and, therefore, void, and that the $6700 was subject to the demand of White, if such contracts were void. It is urged on the part of White, that the wheat was sold by Barber for him without any intention on the part of either of them that there should be any delivery thereof, but with the intention that the transactions should be settled by the payment of the differences between the prices at which the wheat was sold and its prices at the times stipulated for its delivery. White testifies that such was his understanding, communicated to Barber before Barber made the contracts of sale. Barber testifies that he has no recollection of anything of the kind. The evidence as to what White did in connection with the transactions is inconsistent with White's version, and it clearly appears that Barber had no such understanding.

The defence set up in the answer of Barber is proved to every substantial intent, and the facts therein set forth constitute a valid bar to the suit of White. The evidence shows that White in advance required that Barber should trade with parties whom he knew to be responsible; that, in each case, he gave special directions to Barber to buy or to sell, as the case might be, and left it to Barber to put the contract in form, these directions being generally given by telegrams from White at Fort Wayne to Barber at Chicago; that it was understood between them that Barber should buy or sell at the Chicago Board of Trade; that Barber, in all cases, obeyed the orders of White; that White controlled the trades which Barber made; that, unless the margin was exhausted, Barber was not to close out White's trades until White directed him to do so; that it was understood that Barber was to observe