Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1881-10-28
ENTITLED TO RECOVER.
J. J. Slower VS.. Tennessee Brokerage
Association.
Judgment Rendered by Esq. J. n
Coleman for $500.

decision of. M. Coleman, Esq, in the
case Of Slower VS.. the Bucket Shop:
J. J.. Slower VS.. Tennessee Brokerage Asso-
ciation.
This suit is for damages for breach
Of a contract and the case is this;
The plaintiff, on the Both of Sep
TENDER, 1881, gave the defendant an
order to buy for him for November
delivery 10000 bushels of wheat (sell-
ers' option) and deposited with it a
margin of 800, which order was on
same day filled. The contract was
subject to conditions, amongst them
the material one and the one on
which the rights Of the parties are to
be determined is that should the mar
gin be reduced on the. wheat to less
than ! of a cent a bushel, then the
contract to be closed without further
notice. The wheat was purchased at
1927 cents per bushel, the certificate Of
purchase stated an exhaustion of this
margin at 14lA, according to kilograms
received and bulletined by the defend.
ant. Wheat sold in Chicago the day
of the purchase at 14li. Acting upon
the information conveyed to it the de-
PENDANT closed out the contract, as we
assume, sold this wheat at a figure not
stated. T~hereupon the plaintiff having
information that November wheat was
not selling SO low as the bulletin
board Of the defendant indicated, OBJ
iected to the sale so made and demand
ed that his contract be closed at 14S
per bushel, that price for November
wheat being O~btainable on that or a
subsequent day. The defendant de-
clined this proposition afterward, and
at 3 O'Clock in the evening Of October
Sd the plaintiff renewed his offer in a
written notice then served on defend
ant, stating therein hat unless his
contract was settled at that figure be
should hold it liable in damages at
81 AZ per bushel, the then selling price
IF November wheat. The defendant
vas given till October 9th to accept
this proposal. 1t was declined. There
fore this suit was brought, The
breach assigned is the sale of the
before au exhaustion of the
margin. According as we construe
the contract it was an executory one
for the sale Of chattels, and if it was
upon an understanding when made
between two parties that the wheat
was not to be delivered, but that one
would pay and the other receive the
difference between the contract price
and the market price at the date Of
then it was void. North
VS.. Phillips, 80 Pa, $50; Story VS..
Solomon, Il II. Y, 42O; Marshall vs.
Thurston, 3 Lea, 743; Pickering VS..
Crease, 70 ILL.,, 325.
But if either party intended, bona
fde, to perform the agreement
the intention of the other to settle by
payment Of differences viii not make
it void as a wager. Gregory VS.. Wen
dell, 40 Mich, 43l; Gregory VS..
Woodie, 40 Mich, 432; Ripley VS..
Boynton, 70 ILL.,, 1853; Ripley VS.. Boyn-
ton, 20 ILL.,, 25l; Benjamin on Sales,
3 $40.
The rule in Tennessee is thus
stated by Justice Cooper: "a contract
for the sale.of goods to be delivered
at a future day is valid, even
though the seller has not TIE
goods nor any other means
Of getting them than to go into the
market and buy them. But such a
contract is only valid when the parties
really intend hal the goods are to be
delivered by the seller and paid for by
the buyer. Sd Lea, 743; Watkins vs..
Freerson. MSS Deer. 1879.
There is no proofin this case as to
what the intention Of the parties was.
The presumption. therefore, is that
the contract was legal. Story vs.. Sol
omCn; Il N. Y, APO.
The issue then turns upon the con.
tract. 1t is in substance a proposal
made by tho plaintiff to the defendant
to place with it the sum of one hun
bred dollars, as a margin upon a pur-
chase by it of 10000 bushels Of wheat
to be delivered in November at sell.
er's option for account OIL plaintif; and
on acceptance Of the proposal with all
conditions, among them being
authority to the defendant to sell
the wheat and reimburse itself if tie
margin should at any time be reduced
TO less than one eighth of
a cent per bushel. The
Association wss not the mere
agent to buy; it was to pay for and
held until the transaction was closed
by a sale Of the wheat, either for
account Of the buyer upon his request
or for his account upon the reduction
Of his margin to the figure agreed up
on. A failure to have sold upon the
buyers request or a sale before an
exhaustion Of the margin, would have
been breaches Of the contract. The
intention of the parties being that
there should be a delivery ofthe wheat
it is not material who was to
pay for it and from whom it wa,
bought; the buyer had the right t
sell aud assign his contract. The
wheat was purchased for him. Au.
thority to sell il was only given upor
a specified reduction of the margin
The nnestinn. then 81 Did ihis CON