Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-02-22

ceived its money were gambling trans
actions. Defendant contends on the
other hand that they were legitimate
trades, or at least, that the evidence is
such that it was for the jury to say
whether they were legitimate or were
gambling transactions, and that the
verdict for the defendant should not
therefore have been set aside. There is
practically no dispute as to the manner
in which the defendant conducted its
business at Casselton and elsewhere or
as to the particular transactions with
plaintiffs agent. The testimony on this
point is furnished by Carter and Sparks
and by one Barry, who was defendants
vice president and head bookkeeper at
its home Office at the city of Minneapo-
lis, and their testimony differs in no i'm
portant particular The defendants Of
flee in Casselton was connected by a
private wire with the home office at
Minneapolis, and it exhibited on black
board in its Casselton office the Chicago
and Minneapolis market quotations of
grains produce and stocks, under appro-
pirate headings. Upon the basis of these
quotations the customer would give his
order to the local agent for an alleged
purchase or sale of grain or other COM
modify for future delivery. The local
agent would wire the order to the home
office in Minneapolis and the latter at
once, Casually from one to five minutes
later,) wired its acceptance of the
trade. The defendant also mailed to its
local agent for delivery to the customer,
a written but unsigned statement or
confirmation" of each transaction os-
tensibly showing what the trade was.
This so-called confirmation" contained
the following: Notice: We hereby
agree to receive all property sold to us
or through us and to deliver all prop
erty bought from us or through us at
maturity of contract and we will not &C
cept business under any other condition,
and the trade below recorded is made
with this understanding. We also re-
serve the right to close any trade made
with us or through US, without notice,
if the money in our hands is in our
Judgment insufficient to protect the
trade" The defendants rules required
the customer to deposit margin of two
dollars per share ON stock, one cent per
bushel on grain, and twenty-five cents
per barrel on pork, whether the Gus
toner purchased or sold. On each sale
OF grain the customer paid one-eighth
OF a cent per bushel, which was called
commission. When the sales were closed
out on the day of the trade payment of
margins in advance was not usually
exacted When the fuctuation in price
exceeded the margin the customer was
required to put up further margins or
his deal was closed out. Settlements
were made whenever the customer wish
ed and were based upon the market
quotations upon the blackboard If the
price had advanced the customer was
paid the difference between, the quotation
when the trade was made and the quota
ton at the time of the settlement. If
the price had fallen the depreciation was
charged against the amount he had put
up as margin. za
The decisive question in this case is
whether the. parties intended an actual
delivery of the commodities in which
they purported to deal. If they did, the
transactions were legitimate. If - they
did not they were gambling transactions.
The law applicable to such transactions
is well settled.
The only question of difficulty in cases
of this character is to determine what
the parties really intended, that is,
whether at the time the trade was made
they intended in good faith to deliver
and receive the commodity which was
the subject Of their alleged sales, OF
whether they in fact had no such pur-
pose but on the contrary intended to set
tie upon a basis Of difference in market
quotations. What are the facts in this
case? It stands undisputed that no de-
lliveries were made by or to Carter Of
any of the commodities which were the
subject Of his trades which were prob
ably FIVE hundred in number. No deliv-
cries were ever made by or to any of
defendants customers at Casselton DUR
ing the two years in which it maintained