Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-10-09

,al continued rom page twoD u, N
companied With instructions to sell on
arrival, such instruction, under the
universal custom, are equivalent to
SPECIFIC Instructions to the broker not
to apply such shipment on the out
standing sales for future delivery.
The undisputed evidence discloses
that plaintiff, pursuant to instructions
from time to time, sold for defendant
upon the Duluth Board Of Trade 1900
bushels Of wheat for December de-
livery, presumably intended by defend
ant as hedges" and that pursuant to
such arrangement between the parties
the defendant, from time to time, ship
ped to plaintiff in the aggregate $1,000
bushels of grain, Of which shipment
only 1900 bushels Of wheat were ap-
piled on these hedges" the balance
having been sold and the proceeds
credited to defendants account. The
remaining $4,000 bushels sold for De-
cember delivery, not having been de-
livered by defendant, as plaintiff con-
tends, the plaintiff was required, under
the rules of the Board of Trade, to full
fill it's contract, which 1t did by pur-
chasing like amount for delivery at
that time, and in doing so it insured a
loss, which, including commissions
and interest, aggregates the sum sued
for in this action. r.
The undisputed evidence discloses
that operations on the Duluth Board Of
Trade are restricted to actual trans
actions in the purchase and sale Of
grain, and that dealing In what Is CON-
monty called options which does not
contemplate the delivery OF the actual
grain but is a mere gambling transac-
ton of the market, is strictly forbid
den. The evidence also discloses that
there is a clearing house connected
with the board Through which all deals
are adjusted each day by striking
balances between the broker and such
clearing house, also that all trans
actions upon the board are carried on
in the names of the brokers without
disclosing their principals, and that
each broker becomes personally
responsible for the f,IlflIment Of all
contracts made by him in behalf OF
his principal. ~ ct.
The evidence discloses that accom-
spanying or proceeding each shipment
of grain the defendant sent the plain
tilt specific Instructions as to the dis
position OF the same. except as to ave
cars aggregating something over 1000
bushels Of wheat, which shipments
We're not accompanied or preceded by
any instructions or directions as to
Its disposition. Plaintiff comedies
that as to these i've cars, there being
no directions from the defendant ais to
It's disposition, that It was plaintiffs
duty to apply the same to the extent 81
1000 bushels upon the December sales,
which 1t did, but that as to the ne.
manning shipments which were accom-.
panied by specific directions to sell
on arrival, 1t had no authority from
the defendant to apply the same upon
such December sales It is the defend.
ants contention that under the ar.
rangement or agreement between the
plaintiff and defendant twas the duty
of the plaintiff to take down. the
hedges" without express instructions
from the defendant, as soon as the
shipments were received and sold. B.
The defense interposed by defend.
ant is, first: that the transactions 81
deals alleged to have been made by
plaintiff for and on account Of defend
ant, were merely gambling transac.
tons and dealing In so-called "op.
lions" and that the delivery of actual
wheat was never at any time contem.
plated by either OF the parties, and,
second: that the alleged transactions
or deals were carried on under an
agreement whereby plaintiff was ito
protect defendant by buying back the
future wheat which defendant had sold
as fast as actual wheat arrived, and
that plaintiff failed and neglected to
act and do as 1t had agreed, and be.
cause OF such failure the loss for
which plaintiff seeks to recover was
incurred, and not otherwise.
The defendant contends that there
was sufficient evidence to require q
submission Of the issues to the jury,
and hence that the trial court erred IN
directing a verdict in favor OF the
plaintiff. This IL the sole error com.
planned Of. In disposing Of this as
sdgnment Of error we must keep Ii
mind the we'll settled rule that q mo
Hon made at the close of the trial Tor
q directed verdict Is in the nature Of
q demurrer to the evidence and hence
all fair inferences from the evidence
must be drawn In favor OF the party
against whom such verdict was direct
al