The Dallas daily herald. [volume] (Dallas, Tex.) 1873-1887, 1884-06-11

they had made the purchase according D.
The Tules OF the New York Cotton exchange,
Tho plaintiffs claim that the contract on
lie face WAS q valid contract. Ihoy reler 20
the rules vi the New York Cotton exchange
which giye q form tor oil these contracts,
aud which provide: "All contracts FOR tho
future delivery OF cotton shall be binding
upon members, ana Of full force rnd oileot
until the quantity aud quslities OF cotton
upeuiied Ia such contraot ahHll have been
delivered, and the pfioe specified IA said
contract shell hay, been paid, Nor shall
any contract be- entered into with any
stipulation or understanding between the
psftes, az tho time OF making snon
contract, that the terms otsaid o1ntrac. as
specified IN section - o. The by.lawe nre moi
b. be fulfilled, ana the ostton delivered
and received iB accordance with Gaia sec.
ton"
The contention Of the plaintiffs Is that
they made the contract for the defendant
under these rules, and that upOn tie lace
" these rules the party selling the cotton
wa0 bound TO deliver ~ and the parry pur-
chasing Wa hound "a receive and pay To-
10. lfthat contention ~ true, II that Is me
real transaction aud o.ate OF the case,
this unknown party Gpreed 10 cell this cot
ton with tho intention Of delivering ~ aud
Howard bought the cotton with The inteu.
ton Of receiving Il, or II either ore OF the
parties entered into thu contract WIN the
purpose OF carry wa ~ OUT IN good ia,th ny
rOceiging the cotton or by delivering 80. u
that IL the real Transaction this ~ a binding
contract and Dsunis, Perkins q Co. ore on
titled TO recover rom defendant what they
have paid IA hia behalf on the contract, n nd
their COMMISSIONS, and are quilted 20 the
amount with interest. Bar the defendant
Say that corcediug that THE, upon the
face Of the Transaction, may have been the
contract, yet ~ ia not IN I q the contract
of the parties. The defendant contends
that there was never any intention,
either on bis p'rl or on the
part Of the unknown party who sold him
the cotton that there SHOULD be a delivery
on the one hdnd and q receipt aud pay ment
Of the priceo on the other. He says 10 was q
mere bet between him and the unknown
party upon the future market; that be bel
that cotton would 20 mp during April and
the other party bet that u would 20 downi
and hot that was really tho transaction
and nothing else. Ia order 10 mako goou
this defense, as you will sec from what !
have read you FROM this decision OF the
supreme court Of the United States, IL u
necessary that both the parties 10 this
trsnsac Tor, that the seller and purchaser
snouid have understood u In the came wsv.
1t Is necessary that Howard should have
underltoud shat he was not bound 20 r..
WV bNNNFAf ~ Fa' ' NAE AHAANA
ences, and that lhe other party understood
that he was not bound 10 deliver, but only
20 pay or receive tue diff Fences. IL you
arc satisfied from the evidence in this case
that the contract was simply a wagering
contract, as | have defined IL, that ne theI
party had any Intention OF either receiving
or delivering the cotton, that the unknowD
seller mad no intention of delivering tn
and tina the def ndant had no Ia.
reution OF receiving the cotton end paying
for IL when the time tor deltv ~ arrived, IL
that Was the understanding OF both parties
it was a wagering contract aud the de-
IL ndaut Is not liable 10 pay the
money which tho plain ini clam TO
have advanced in HIS behzlf upon the pur-
chase. Bus u, on The other hand, the evil
deuCa does not satisfy you thtt such was
understanding Of Do.h the parties to
this contract then that defence would not
h0ld good. Now, IN order 10 ascertain
this defence Is made ut,yOu sret 70
look at oil tho circumstances surrounding
the transaction and the declarations OF the
at tho TIM the c)IirecL Wac made
\ ou nre not coniiued to the mere terms o.
tne contract because that on It's face seems
10 oe q valid contract, but you ufe 90 de
nidn what The real contract was, and w On
ing this you may cJGsider all the situation
aud surroundings OF the parties aud ell
iacts and circumstances which tend 10
any lignt on the ,ranssot'on.
| Is claimed further on the part OF tbs
defendant tba MUrdscei & 20. were agents
Of the plaintiffs, and ihat the defendant
known 10 Mordec9i d Co what his
DurD0sc was In entering into this contract.
q cc0rding to my recollection there was
some difference ~ the testimony upon this
point, but even ~ II be trno that the de
made known 10 MordecAi & Co.
when be entered upon the negotiation for
The purchase OF the cotton that he merely
Intended 10 pay tho differences and never
to receive and nay Tor the cotton,
pet that circumstance may be
by the further fact
which plaintiffs claim TO have proven that
after the contract was made By them In
New York they sent q written and printed
10 the defendant to the effect that
they had made the contrsct for him &C
TO the rules of the New York Cot
ton exchange. III that be a fact, and the
rules OF the New York Cotton exchange re- |
uuire II 20 bs o bona hde contract, requir.
ing the parties to receive on the one hand
and to deliver on the other, the party re- |
ceiying such notice never objecting TO II.
might be construed ss a ratification OF
their act in making the contract In the
In which they did. So that, even II
the defendant did give Instructions TO Nor |
decai ~ Co. TO make o wagering contract,
vet If ha was Informed that a bona iide COZ. |
tract had been made Tor him under the
rulss OF the New YORK Cotton exchange, |
and did not Oh jsct TO 1t, aud never took any !
exceptions, yea may consider that as tend
lag TO show o ratification on his part OF the
conti act which was made in his bshelf by
tae plaintiffs, although, US i have already
] lid to you, the form of the contract made
by the p~leintifis Tor defendant YVES valid on
Is face, yet II tho real transaclion was n |
wagering TRANSACTION, both parties, the IN
knoyn seller and the known buyer so M. \
.isrsiandirg IL. tnePe can be no recovery.
But tho defendant pleads further that
wen II the contrso. IS cot 4 wagering |
yet that the defendant is
not bound Tor ell tho money claimed, be. |
on the 22d Of March, 1880, be wrote q
Ietter TO tho plain,iils In Nev York in
which he directed them thas as soon as the |
,o.ton witch ne had purchased had fallen |
Eve points that they should sell immedi.
ateiy and not let the cotton decline further /
ceiling, and thet II they had
opeyed his Instructions Given 10 that lstier, |
Instead of owing plsintiFl 1901, the amount |
Tor which he would have been liable would
only be $35l 90, aud tnat even II the con
Is aid aud binding, veto account OF
The neglect o, tins plaintiffs TO follow his in
sirnctions, he is only liable for the sum l
ment'oaed.
The ISSUE IL raised here whether that let
was ever sent or received. You have |
he evidence OF the defsudant that no wrote
he letter and handed Il 10 his clerk. prop
directed and post psid, to deposit 10
tho ~post-ofice. You hsve the evidence OF
the clerk that about that time, the 10Th or
,2i o; Maro1, he did deposit such q letter
IN the post oiiic. in thi. place directed 10
he plaintiffs IN New York City. Tint Is
he testimony on part Of defendant to show
be notified the plaintiffs to make the
sale OF ths cotton. The plaintiffs, ON the
other hand. swsar that they never received
he letter. The rule OF the law is that
q letter Is deposited In the poet
,1icc or given to q carrier
nronarly direct.d and postpaid that thsIe