The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1883-11-14
Superior Court.

BEFORE JUDGE BoNNEY.
TUESDAYS. H. Larminie and others " George
Milliken.
The forenoon and portion of the afternoon was
occupied by the arguments by Mr.. Holmes, On the
part of the defence, and Mr.. Bradbury on the part
of the plaintiffs, aud at O'Clock Judge Bonney
charged the jury:
Upon the point set up by the defence that this
was gambling contract and therefore illegal, the
judge instructed the jury substantially follows:
1t is common and sometimes necessary to con-
tract for the sale and future delivery of article
which at the time has existence, but which is
afterwards to be purchased or raised, or manufac-
tured SO that contract for the sale of wheat, to
be eeliyered in good faith at future time is per-
fectly legal and is protected by the law. But such
contract entered into without any intention of
having any wheat pass from one party to the other
but with an understanding that at the appointed
time the seller is merely to pay receive the diff
ference between the market and the contract price
is'a gambling transaction, and cannot be enforced
in court of law. A contract which results simply
in selling of differences is only betting upon the
price OF wheat at some future specified time, and
the party losing In such gambling operation can
cover nothing at law against his fortunate as
sociate. 1t it was understood on the 9th day of
August, between these parties, that no delivery OF
the wheat should take place, but that there was to
be, at the end of the deal, simply settlement OF
dfferences then the plaintiffs cannot recover and
the verdict should be for the defendant But if one
OF the parties acts in good faith, with the intention
and expectation of delivering or receiving the
wheat he transaction, as to him, would be valid
and he is entitled to reimbursement. The written
contracts for purchase and sale of the 90 900 bush
els OF wheat, as well as the original contract be.
tween Jordan and Nillken purport to be. and upor
their face are legal and valid contracts binding up
on the parties until executed or Iescinded. Their
iegality having been alleged by the defendant the
burden is upon him to show it by a preponderance
of testimony
The court further instructed the Jury that if they
found that the contract entered into between DOR
dan and Milliken was not wagering contract the
next and only question for them to determine was,
did the laintH Jordan exercise due and reasonable
diligence in trying to find Mliken to call upon him
for margins. If you find that reasonable diligence
was not exercised in finding the defendant, and the
defendant was wrongfully deprived Of his option,
the defendant would be entitled to a verdict under
the circumstances of this case. If there were no
deposit of SOS 20 in the plaintiffs hands, the
plaintiff would be entitled to recover the sum of
$ll2.5O and interest that is $50 commissions, "A
OF a cent per bushel. and S62.50, that sum being
the difference between the prices at which
the wheat was sold to BRYANT and
Reynolds, and the lowest point touched by
wheat during the period of the option. But so fal
this case is concerned, there being a larger sun
than $l12.5O belonging to defendant in PLAINTIFF
hands, If you find that the plaintiff Jordan die
not exercise due diligence in calling upon Milliker
for margins, then the verdict would be for defend
ant. If you lind that reasonable diligence was ex
ercised by j rdan in finding the defendant, then
the plaintiffs will be entitled to recover such sum
as they actually lost by the default of the
defendant which plaintiff claims is 81 ,23l.25
and interest from date of the writ.
The jury, after being out two hours, returned a
verdict for the plaintiffs for $118.20
This is clearly mistake upon the part of the
jury Tor the amount Of the verdict indicates thai
they must have found that due diligence was moi
exercised by Jordan in finding Milliken and, there
fore, under the instructions as given above Their
verdict should have been for the defendant