Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1880-04-17

70 hich | regard as we'll settled law.
A tAutract for the sale and purchase
If grain or other personal property
which the seller does not own al '!,e
time of the making of the coh'rac'
hut intends aud expects 10 guy /" '"
able him to comply with his contract
il coed and valid if all actual trans
fer of the property is Intended. Du.
If at the time of making the c"htiao'
it was contemplated ana lhtenoeu o9
tho n,rties. that at the time hXeu lor
the delivery the seller was 10 ihahc
no actual delivery of the properly
sold and the purchaser was merels W
receiye or pay the difference bet"ee"
the contract and the market price,
such = contract would be liiesai.
Ifau aoreemcnt is made between d
commission merchant auu another
marty. that the commission mefchaht
shall 90 into the market anu pu! ~.
the other party grain OF other per
sonai property on te"lns lor lu."ie
delivery, aud the parties AT the ,iho
int.ud and contemplate that there
shall he an actual purchase ana dc-
livery of the article purchased, such
a contract is valid and binding ou
inc nnr,ics. But if 1T was lntenueu
hv the nartics and contemplated that
H., erou,d he no actual purchase
and delivery, but mere accounting
for and settlement OF the olherehee
,a,,u.o,, tLe contract and the market
,,..;oa tho contract would be llleSal
and void. nv
:, iurv concluded, by the form OF sucn
| a contract on its face, bnt the cour.
or iury will determine, i'll view OF
| all the facts and circumstances III
evidence. whether Il sale III gooo
faith or 4 mere device or scaeme 10
gamble upon prices was intended.
From this statement OF general
,rinciples it will be readily seen mat
IT is of vita. Importance to ascertain p'
is nractlcabIe, the truth concerning
tbs contract claimed by piaintlii, rs
,n,.dn with defendant i'll 1877, ana al
| some time before the first OF Aprll o.
tha, wear. And also the truth III re-
.neci to plaintiffs lost letter, as
testified OF Sy defendant, DR.. Hart
man and Keller, bearing date abou,
Inc tirst of May, 1873. There Is direct
and palp sole conflict i'll the evioenis
, on these points; it cannot be reconcli
ed. II the evidence of plaintift is true
the lost letter never had an existence
il the evidence given or th'
J los; letter is true, then IN
r contract AS claimed by plain
, iT was never made. If the coptrac'
8 as testified of by plaintiff, was mad
by the parties it was wang contrac rae
9 for n lawful business. Ii the los
letter was, IN fact, written by plain
4 1iff and sent to defendant III repi
e TO defendants inquiries. .and defenaah
e re,yiuu Oh it, ordered purchases
t wheat. making up the $4,000 bushels
C Then these transactions were wager
y ing, 7" "ganlblipg" trausactlohs' III tu
= sense in which those terms are use
e in 3aw hooks. And the purchase
= the !. 900 bushels on the 29th VI APR
= viii share the same fate, lor Tn
1T terms of the alleged lost ietler
II well as the one to which Ii was a
= ans wer, applies to aud includes thi
:e transaction, and the plaintin OH u
a trial testified that that transactio 0
t. was conducted in the same way th'
:; the subsequent purchases were:
10 Tie fact claimed by plaintiff That
f. contract was made by the parties
or some tine in 1877, before the L
at Of April, is positively denied by a
or feudant. who testified that i'll 1917
ne was in st. Louis only once, ana tn'
lg not on business; was passing thfous
hit from Arkansas, and there waiting l.
ed' tho denarture of the tram; thab
d, went to plaintiffs office for SIM
IT puruOse. and that was to borrow >
es to take him home; that when he we
1t, in plaintiff was out, concerned apo
u AN election then going on; thlh
nd pIaintiff was candidate; he came !
ne remained but a very short une nj
'at left hurriedlv; knows no contra
or was made and no talk about busint
ny of anv kind. This fact thas dem
lot rests wholly OH plaintiffs eviaence'
~ Tue evidence produced by defen
lily ant concerning tie lost letter
Ic- denied BY plaintiff in every part
nh II and IT is in irreconcliable conn
as with plaiutif's evidence concerhl
the let;er-prcss copy OF his letter
,ut lne 6th of June, 1878 The ~els
i'm of evidence only can determine ,ht
led conflicts in the evidence. as To
see first conflict indicated plalntil
to evidence stands alone. He falls
lre rive date, first loosely spoke
of ..the ta;i'' then after ''harvest, L
nd settled that it was made some IL
nd before the 1st Of April, 1871.
to NAV, in reason, expect Duslii
.tly man having proper care about
to own Interest and regard Tor
all rights of others 10 have better INT
uid ory OF such "A contract. Drtendan
ore positive III his statement that he
he oniy ia 81. Louis once in that ye
uiyes particulars of his visit in det
4 4. contract
!'h' made and not even talk about b
ion ,or.,s tho m,kiuo of :
a contract at that time conflicts
say the contents of the lost letter and
'' one TO which it was IA reply, defe
'ei aul is sustained by two disintcres
u witnesses, equal i'll character
tes- truth with plaintiffs. On this pt
Aai an of Conflict the weight of evidenc
W with the defendant, unless it shal
1.e , found on examining the evidence b
an" ing OH the other conflict alluded
VII, that the lost letter never had e>
ptu eilce. Did this letter have eXlstei
~. Did plaintiff write defendant su
letter about The time stated by
Il" witnesses! Defendant says he
par ceivud the letter, DR.. Hartman
an he received it, Keller says he saw
= tents; ali concur as TO Tune and q
.,ar, ami give iacts and reasons Tor
'o'n ON membering the time, that III
.no .Iio weli have fixed the time i'll mem
'..e Defendant and Hartman both S,
that lhe sample contracts prod'
here in court came enclosed III
49, ~, letter; all three of them swear
n.y. the letter spoke of the sample
u tracts and of the rules and res
tons: ali three witnesses are lnt
Intelligence, and their Character
~ standing for truth is not disputeo
~ "p'I may be mentioned i'll corrobori
- that these sample contracts
~ ,'n, date the 1st OF May, the very
/ fals the letters must have been wrl
''ies 1.. If written at all. IL is also iii |
- :. nEo mS bv plaintiffs account and letter
49, defendant, on the Fad OF May
,,. day the letter must have bee
~" CeIyad. if 1t all, ordered the pure
= lo Of 10000 bushels of wheat, an
eEF .wears that after receiving plain
o1N'' letter and account OF tue %
April, he decided to order the
~ "a tus of 10 more gram until he
- ~ !" hear from plaintiff aud get q
planutIon and better understai
as 60 how he was conducting
-; BUSINESS.
'n"", ,,',s; Plaintiff positively denies th
~ ever wrote such u letter rs II
II 10, a t.N-t t.tt .i,I y.,i 4