Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-02-22
A Sweeping Decision From the ST..
pFeme Court Affirming
Judge Pollock
Contracts For Future Delivery Must Be Made
With View Of Actual Delivery
Intent To Settle Upon Difference In Market Quotations
Is Mere Wager and Void
Coe Commission Company Must Repay $4,000 They
UaIaWfuly Received

The supreme court has handed down
its decision in the case OF the Beldler q
Robinson Lumber company VS.. The
Coe Commission company, appeal from
the district court of Cass county. The
verdict of the lower court against de-
PENDANTS was sustained. George y.
Emery of counsel for appellant and F.
w. Ames and Morrill, & Engerud for
respondent. Judge Engerud having
been of counsel, took no part IN the
decision of the case. The opinion is by
Judge Young. The syllabus is as fol-
lows:
/. A contract for the sale of grain
or 'other property to be delivered at a
. future date is valid only when the
parties really intend and agree that
the property is to be delivered by the
seller and paid for by the buyer at the
contract price. If the real intent is not
to deliver, but to settle upon the differ
ence in market quotations, the trans
action is mere wager and is void. y
2. When the validiny of a contract of
sale for future delivery is involved and
it is shown that in numerous other and
similar transactions no deliveries were
made but that settlements were made
upon differences in market quotations,
the person relying upon the validity OF
such contract must make it satistac-
torily. and afirmatively appear that the
contract was made with view to actual
delivery.
8. On an examination of the evidence
it is held that in making the contracts OF
sale involved in this case there was no
intention to make delivery and that
they were mere wagers, upon the rise
and fall of prices and therefore void.
The opinion of the court is as fol-
lows: =
Plaintiff brings this action to recover
the sum of So, 667.75, which it claims
its agent, one F. H. Carter, approprl-
ated from its funds and paid to the de-
fendant in series of gambling trans
actions. At the close of the testimony
both parties moved for directed YER
dict. Both motions were denied. The
Jury returned verdict for the defend
ant. Thereafter the plaintiff moved upon
the minutes for judgment notwith-
standing the verdict, or for new trial:
( The motion for judgment was granted
for the full amount claimed and the
defendant appeals from the judgment.
The defendant assigns error upon the
denial of the motion for directed YER
dict and upon the order for judgment
for plaintiff !. The case turns upon a
single question, and that Us whether the
transaction in which the defendant re-
ceived the plaintiffs money were legiti-
mate, or were gambling transactions.
AS to all other facts which are material
to plaintiffs right to recover there is
no conflict in the testimony.
The plaintiff is corporation en-
gagged in the lumber and fuel business
with its home Office and principal place
of business in the city of Mayville. For
number of years it had branch Office
and place if business at the city of Cas-
selton, which was under the charge of
F. HI Carter, who, as agent and local
manager, transacted all of its business
at that point and had the custody of its
funds. The defendant, the Coe Com
mission company, which is a Minnesota
corporation, has its home Office in the
number of branch Offices in various cities
Of the United States. It's ostensible
business is buying and selling grain, pro-
duce, stocks and bonds for future deliv-
cry During the. times here in question
it had an Office at the city of Casselton
III charge of one R. S. Sparks Between
the first day of March, 1902, and the
first day of May, 1903, plaintiffs agent,
Carter, took from the moneys in his GUS
tody various amounts aggregating in all
$8,6677 rs, and paid the same to the de-
PENDANTS agent, Sparks, in settlement Of
certain alleged purchases and sales of
stocks and grain. The plaintiff had no
knowledge that Carter was using its
funds or that he was engaged in the
transactions in which the money was
lost.
The plaintiffs contention is, that the
evidence shows conclusively that the
transactions in which the defendant re-