Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1894-08-10
a. 3. COOKE. NJ. D.

Of the court is clear. "Myriads Of
gambling operations are daily arranged
by two interested brokers, who fatten
on the folly OF their dupes, in the decent
and decorous hablliments Of lawful bust.
ness. The naivete of a tribunal which
in such cases should unquestioninRly
take the semblance for the substance
would indeed be pitiable, if il did not *.
cite derislon and contempt. ]. The order
to purchase wheat came to the plaintiff
in the form in which all orders to gam
bic IN the price Of wheat are sent by
spectators to brokers'"
The decision further quotes the fact
that at no time was there any contempt
latlon of delivery of wheat; no statements
as to by or to whom the wheat was sold;
no interest by defendant in the delivery
OF wheat; no indications in any way, Of
any bona fide deal, and that the only
theory consistent with these facts is that
the deals were understood to be mere
wagers, and this the court holds.
The decision afirms the action OF the
lower court in Diminishing the case, and
allows the defendant costs in the district
court. 1t also denies to defendant the
recovery Of moneys paid to plaintiffs for
commissions, prior to the action, hold
ing that neither can recover from the
other. The syllabus is as follows:
Evidence examined and held to support
finding that plaintiffs knew that defend
ants purpose was to gamble in wheat, and
that they acted as his agents In further
ance of such purpose. In such a case the
agent cannot recover his commissions, or
the advances made by him on behalf OF
his principal. Whether, in making pur-
chases or sales, the agent in such a case
enters into legal contracts is immaterial.
1t he does not, If the other party to the
purchase or sale merely intends to gamble
as we'll as the agents principal, then the
transaction is illegal on both sides, and the
agent who brought it about cannot re.
cover his advances or his commissions.
The agent in such a case cannot recover it
he brings about a sale which on one side
is sustained with the gambling intent, for
such a deal he had no power to make, and
he cannot recover when he loses none in
bringing about a deal which is illegal on
both sides.
Defendant sought to recover as a count
erclaim, moneys paid plaintiffs as margins
in these gambling transactions. Held,
that he could not recover at common law,
and that although the liabilities of plain
titfs to refund such moneys was governed
by the state of Minnesota, where all the
transactions were held, yet that that stat
ute was not broad enough to permit a re-
covery 1.-THE statute is quoted in full in
the opinion.) s3
When evidence which is competent to
establish a fact is admitted, the court on
appeal will not assume that the trial court
considered the evidence in finding another
fact which it was not legally competent to
prove, when this latter fact is fully sup
ported by other evidence.
Unless the plaintiff is entitled to costs
the defendant RECEIVERS costs as a matterfof
course in the district court. Nor is his
right affected by the fact that he set up q
counterclaim which he failed to sustain.
Ball and Watson and White and Hew-
lit were attorneys for the appellants
and b.. ". Camp and 81. Glaspell for
respondent.