, 1880-06-27

line Supreme Court OF Wisconsin mas just
rendered an important decision in relation to
optional contracts. The case is one Of long
standing, and the opinion of the Court will
be of great interest to all persons who buy
and sell grain for future delivery. About
three years ago Henry Backhaus, country
merchant in Washington County, Wisconsin,
directed his brokers, Zinckheisen, Bartlett &,
Co., members of the Milwaukee hamber of
Commerce, to sell grain for him deliverable
at 4 future day, which they did in the usual
manner on 'Change, in their own name, and
not disclosing the name OF the princi-
pal. The price of wheat went BOOM
inc, and threatened to rise still high
er, and Backhaus ordered his agents,
Zinckheisen, Bartlett s. Co., to make con-
tracts for the purchase OF grain to offset
against the contracts for delivery. They did
rs he (Backhaus) requested, and paid q much
higher price than they had before contracted
to sell for. Of course there was q heavy
loss, SO great indeed as to absorb all
of the money deposited by Backhaus
as margins, and he gave IN settle
ment three promissory notes besides.
These notes were negotiated and sold before
maturity to one Seckel, Of Chicago, who after
wards indorsed and sold them to Henry c.
Barnard. Barnard brought suit in the Mil
waukee County Court and obtained judg-
ment for the full amount Of the notes
and interest. Backhaus appealed the
case to the Supreme Court, setting up
the defense that the usual practice of dealing
in grain by members Of the Chamber Of
Commerce does away in fact with the de-
livery OF the grain bought and sold, and that
there is an understanding among the dealers
that such delivery is not to be insisted on,
and that such contracts are not bona tlde
bargains, but merely wagers upon the future
price of grain. This view was stoutly re-
sisted by the respondent, who declared that
the contracts were made to be executed ac-
cording to the stipulations, and that the I.
grain is actually received and delivered
if it is insisted upon by the contract
ing parties. The County Court held that
both Seckel and Barnard bought the notes
before maturity and for a valuable con-
sideration and without notice Of any de-
fense. From this judgment Backhaus
appealed, and the Supreme Court con-
sidered the case of so much Importance
that Chief-Justice Ryan required it to be
argued orally before full Bench, in addi-
ton to the printed briefs already submitted.
The following is the abstract of the de-
cision,-the opinion being written By Chief
Justice Ryan, in which the four other Judges
concur:
Contracts in writing for the sale and delivery
of grttln at 4 future day, for Il price certain,
made with u boun tide Intention to deliver the
grain and pay the price, are valid In law.
But when such contracts are made as 4 cover
for gambling, without Intention to deliver and
receive the grain, but merely IT, pay and receive
the difference between the price agreed upon
and the market price ut such future day, they
come within the statute Of gaming, and are void
in law.
To uphold such n contract 1t must Affirmative
II and satisfactorily appear that it was made
with an actual view to the delivery and receipt
Of the grain, and not an evasion of the statute
Of gaming or as cover for gambling traus-
action.
In the present case it sufficiently appears that
at lcnst SHINE Of the transactions between the
parties which enter into the consideration Of the
note and mortgage in suit were mere gnn1iug
transactions Of this character; were void in
themselves, and taint the whole security, which |
is therefore absolutely void. The complaint
should have been dismissed.
Fr7@ TtIfrA Tr.rr1~>cr, nrca moro no1tc