SPECULATIVE OPTIONS IN WHEAT ARE WAGERING CONTRACTS.

#### Hawke v. Roberts & Hall.*

Decided, June 1, 1920.

*Bills of Exceptions*— Correction *of Will he Denied, When*— Option *Transactions Based on Rise and Fall of Market Price of Wheat afe Wagers and Yoid*— Where *Both Parties Intended it to he a Wager.*

1. A motion to correct a bill of exceptions will be denied where the correction of the bill would not result in a different conclusion from the one already announced.

2. Option transactions by which the contracting parties speculate in the rise and fall of market prices, one of the parties agreeing to pay to the other the difference between the contract price and market price at the date fixed for the execution of the agreement, are a wagering transaction and void.

3. In order to invalidate, as a wagering contract, an agreement which on its face is legitimate, both contracting parties must have understood and intended it to be a wager.

*S. Geismar*and *James Fitzpatrick,*for plaintiff in error.

*Moulinier, Bettman & Hunt,*for defendant in error.

Application for rehearing.

*

Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, December 6, 1920.

By the Court.

Heard on error.

Plaintiff in error, George S. Hawke, has made application for a rehearing therein, and has also made a motion to correct the bill of exceptions. In support of the motion affidavits are offered on the part of the plaintiff in error to the effect that the bill of exceptions does in fact contain all the evidence offered at the trial, although the certificate of the trial judge does not so show. A counter-affidavit is filed on behalf of the defendants in error to the effect that not all of the evidence is contained in the bill of exceptions.

*462The question, on which the original opinion rendered was based, was argued orally at the time of the hearing in this court. Counsel for plaintiff in error wrere present, but preferred to make no oral argument, and the motion and affidavit filed after the decision was rendered are the first intimation to the court that there was any error in the certificate to the bill of exceptions. The court has the power under Sec. 11572-a, G. C., to permit the correction of a bill of exceptions where the interest of justice requires it.

The court, therefore, has examined the record and briefs of counsel to determine -whether, if the record were corrected, it would avail the plaintiff in error.

The. only Avitness at the trial was the plaintiff. Pie is a laAvyer and aauis introduced to the defendants who are brokers with offices in the Mercantile Library Building, Cincinnati. After being introduced to them, he 'only faintly recollects occasionally speaking to one or the other. His transactions were by giving orders to employes to execute. Pie AA-as dealing in wheat options, which, in answer to a question 'by his counsel as to the meaning of an option account, he defines as folloAvs: “It means that I have an option to receive or buy some Avheat when the time for delivery comes around.” The transactions were in the usual form of legitimate, and ordinary dealings. If the whole transaction were nothing more than a wager, and the understanding and agreement was th'at no goods were to be delivered, but that the parties were to speculate in the rise and fall of prices and one party was to pay the other the difference between the contract price and the market price at the date fixed for executing the contract, the transaction Avould be void, even though it were under the guise of a legitimate agreement. *Irwin*v. *Williar,*110 U. S., 499; *Lester*v. *Buel,*49 Ohio St., 240 and *Kahn*v. Walton, 46 Ohio St., 195.

The plaintiff testified that it was his intention to spe.culate and gamble. In order to invalidate a contract as a AAragering one, both parties must intend that instead of delivery of the article there shall be a mere payment of the difference between the contract and the market price. A transaction which on its

*463face is legitimate cannot be held void as a wagering contract by showing that one party only so understood and meant it tq be. The proof must go farther and show that this understanding was mutual, that both parties so understood the transaction. *Clews*v. *Jamieson,*182 U. S., 461, 489; *Irwin*v. *Williar,*110 U. S., 499, 507, 508, and *Otis & Hough*v. *Thompson,*4 O. App., 61, 63; 31 O. C. A. — .

The plaintiff in error contends that defendants are chargeable from the circumstances with knowledge of his intent. Unlike the ease of *Otis & Hough*v. *Thompson, supra,*and *Lester*v. *Buel, supra,*there is nothing here to show that plaintiff did not have adequate means to consummate the transaction which he had made, and no evidence tending to show that the defendants knew anything about his means or circumstances. The record does not.disclose that they did'otherwise than act in good faith as brokérs for plaintiff in procuring wheat options in accordance, with law.

The correction of the certificate of the bill of exceptions would not result in a different conclusion from that already announced.

The motion to correct the record will be denied and the application for a rehearing refused.

Shohl, Hamilton and Cushing, JJ., concur.