{ "id": 2416099, "name": "Charles A. King & Company v. Alonzo Luckey & Company", "name_abbreviation": "Charles A. King & Co. v. Alonzo Luckey & Co.", "decision_date": "1886-08-26", "docket_number": "", "first_page": "132", "last_page": "137", "citations": [ { "type": "official", "cite": "21 Ill. App. 132" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "7 Ill. App. 560", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4832871 ], "opinion_index": -1, "case_paths": [ "/ill-app/7/0560-01" ] }, { "cite": "83 Ill. 33", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2657584 ], "opinion_index": -1, "case_paths": [ "/ill/83/0033-01" ] } ], "analysis": { "cardinality": 532, "char_count": 11372, "ocr_confidence": 0.473, "pagerank": { "raw": 6.77084526399421e-08, "percentile": 0.40947213524803955 }, "sha256": "33e46411a52b9b7b81908cc36d1194d96c5c91f41c3845c8d2fb560721a93a9b", "simhash": "1:af45f521e8b7ac14", "word_count": 1913 }, "last_updated": "2023-07-14T19:33:21.717522+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Charles A. King & Company v. Alonzo Luckey & Company." ], "opinions": [ { "text": "Pleasants, P. J,\nPlaintiffs in error owned an elevator and did a general commission business in grain at Toledo, Ohio, and defendants bought and shipped at Rantoul, Illinois. In May, 1881, the parties made an arrangement whereby King & Company were to advance money to Luckey & Company to purchase corn which was to be shipped to them for sale, and to have interest at the rate of eight per cent, per annum on daily balances due and one cent per bushel for selling. Defendants had no elevator but bought as they could by wagon loads and by contracts with farmers, on which they obtained advances from plaintiffs, and ordered sales in advance of shipments, and in some instances purchases also, to meet contracts of sales so made. For advances made on losses upon such transactions plaintiffs in error brought this suit, in assumpsit, on the common counts. Penfield was defaulted. Luckey filed the general issue and also a special plea that the promises declared on were all made in consideration of gambling contracts for the purchase and sale of options and differences in market values of grain at a future time, etc. Upon a verdict for the defendant, the court refused anew trial and entered judgment.\nThe account between the parties embraced other items, but those which constitute the balance claimed and are the subject of this controversy are these: ,\nJuly 22, 1881. Loss, August 10, corn, purchase and sale.............................................................$287.00\nAugust 5, 1881. Loss, August 2, corn, purchase and sale........................................................... 30.00\nAugust 20, 1881. Loss, August S, corn, purchase and sale......................................................... 910.00\nIt is not denied that these purchases and sales were made, or that losses were sustained and advanced thereon as charged, but it is insisted, first, that they were gambling contracts, and second, that there was no authority whatever for the purchase referred to in the last item, and that the others were not in strict pursuance of the orders given.\nFour telegrams from defendants to plaintiffs were introduced as follows: June 11, 1881, \u201c Sell five August corn ; \u201d June 16, 1881, \u201cSell five August corn;\u201d July 22, 1881, \u2022 \u201c Buy twelve thousand August corn,\u201d and of same date, \u201c Sell ten August corn.\u201d It appears that upon receipt of these, respectively, plaintiffs made the sales and purchase as therein directed, hut the purchase was made in two lots, 10,000 in one and two in another; and further, that the defendants having failed to ship any grain for delivery on these sales they also purchased the deficient amount of 8,000 bushels, in two lots of five and three. There was positive and uncontradicted testimony that Penfield, in the absence of Lucbev, expressly directed the purchase of the 8,000 bushels, but the telegram was not produced nor its absence explained. Defendants however made no objection to the evidence.\nUpon this state of the proof the court gave these instructions at th\u00e9 instance of defendants:\n1. \u201cThat an order to sell corn does not authorize the purchase of corn, and an order to purchase corn does not authorize the sale of such corn when bought; and if you believe from the evidence in this case that when Luekey & Co. ordered plaintiffs to sell corn, the plaintiffs, without other authority or orders, went- on the market and bought that amount of corn and then sold it again, and thereby loss occurred, that such losses can not be recovered of the defendants in this case.\n2. \u201cThat an order to buy or to sell a certain amount of grain must be strictly complied with in order to charge the party making the order, and an order to sell 10,000 bushels of corn does not of itself authorize the sale of 8,000 bushels, or any other amount than 10,000 bushels, and does not authorize the purchase of grain for the purpose of making such sale; and therefore, if you believe from the evidence in this case that the defendants ordered the plaintiffs to sell 10,000 bushels of corn, and that the plaintiffs thereupon, without other or different authority or orders, went and bought 8,000 bushels of corn or any other amount, and then sold it again, and thereby a loss occurred, the plaintiffs can not recover such loss of defendants.\u201d\nWe must think these instructions as applied to this case are quite erroneous. There is no dispute that these contracts for sale and purchase were all made in June and July, and were for August delivery ; that the orders wore to contract for the delivery, in August, of 20,000 bushels; that when the time for delivery came plaintiffs had, until they purchased the 8,000 bushels objected to, only 12,000, and that the deficit was due to the neglect of the defendants alone. Having then, at the instance of the defendants, become personally bound to deliver these 8,000 bushels also, the plaintiffs were by these circumstances impliedly authorized to procure them at the charge of the defendants. So that while the legal proposition of the . instruction may be sound in the abstract, it is wrong as applied, in that the hypothesis of fact contained therein wholly ignores these grounds of authority. The assumption* in the second instruction, that upon an order to sell 10,000. bushels the plaintiff sold only 8,000, is altogether unwarranted. They bought 8,000 to make it up, with the 2,000 remaining of the 12,000 after 10,000 were delivered upon the two orders for the sale of 5,000 each; the other 10,000 they were ordered to sell and did sell. ,\nFrom the evidence it is clear to our minds as matter of fact that plaintiffs strictly complied with all the orders given, and \u25a0 as matter of law, without reference to the evidence of Pen-field\u2019s order, that they were fully authorized to make the purchase of the 8,000 bushels.\nBut the main question is whether these were gambling transactions within the meaning of the statute.\nUpon this question three witnesses were examined. Mr. Southworth who was, during the period covered by these transactions and for sixteen years had been in the employ of plaintiff and had kept the accounts between these parties, testified most clearly and positively that these were purchases and sales of grain, actual and bona fide, in contemplation of its delivery and receipt, and not of settlement by payment or receipt of differences of market values, and that warehouse receipts therefor, of the full amount in each case, were delivered or received by the plaintiff; that they had never in any instance, to his knowledge, dealt in options or made contracts\u2018to be settled by the receipt or payment of differences, and that in these cases they expected and had reason to expect shipments from the defendants to meet the sales; that several ear loads were received by them between the dates of sale and delivery, but with orders accompanying or following each to sell them on the market in order to get the better prices ruling at the time, letting the sales for August delivery stand in the hope of getting enough of other corn in the country to fill them. Mr. Penfield, one of the defendants, testified that he understood and intended these telegrams as orders for real transactions and hot for unlawful options.\nMr. Luckey\u2019s testimony was in the form of a deposition. The most material of the interrogatories, respecting the - several transactions referred to in the items of charge and his answers thereto, were objected to, but admitted. The following, respecting the first, is not an unfair sample. He was asked to \u201c explain what kind of a contract and transaction this was, and state fully whether you purchased of or sold to the plaintiffs said 10,000 bushels of corn, or whether any corn was in fact bought or sold or not in that transaction,\u201d and answered \u201c This was an option or future contract. I did not purchase or sell any corn in connection with that transaction, neither did they purchase' or sell any corn on my account in that transaction, nor was there in fact any corn purchased or sold by anybody in connection therewith.\u201d\nThe item does not import nor was it ever claimed that defendants purchased of or sold to plaintiffs these 10,000 bushels or any other corn. It was hardly within the province of the witness to explain or state of what \u201c kind \u201d was the contract or transaction in question. He should have been confined to a statement of the contract or transaction itself, leaving to the jury to determine from the facts, under the instruction of the court, whether it was or was not of the kind known to. the law as option contracts. He could not have personally known, and it does not appear upon what other grounds, if any, he states, what the plaintiffs did not do and what was not done by anybody in connection therewith.\nHe proceeded to characterize the other transactions here involved in like manner and to tell what were and were not the intentions and acts of the plaintiffs and the other parties to the alleged contracts, as freely as of his own, but does not intimate that he was present on any occasion so referred to, nor state as of his own knowledge any facts throwing light upon anybody\u2019s intentions, except that \u201c the defendants did not have 10,000 bushels of corn to deliver to King & Go. at that time,\u201d and that King & Co. \u201c never, at any time, requested or demanded the delivery, neither did they offer to deliver corn to fill\u201d the contract. If he means they never so requested of or offered to the defendants, it is not very cogent, if of or to the other parties to the sale or purchase, it is not clear how he knows.\nThese opinions and assertions of what he could not know can not be considered as contradicting the testimony of South-worth and Penfield as to what was done and intended. The only other evidence in the case, besides the telegrams mentioned, were some letters of Luckey and a telegram, which were not pertinent to the question.\nWe think, therefore, that the verdict was clearly unsupported by the evidence, and if not the result of prejudice must be attributed to improper testimony admitted and erroneous instructions given, as above indicated. The judgment will be reversed and the cause remanded.\nReversed and remanded.", "type": "majority", "author": "Pleasants, P. J," } ], "attorneys": [ "Mr. Francis M. Wright, for plaintiffs in error.", "Messrs. T. J. Both and J. L. Ray, for defendant in error." ], "corrections": "", "head_matter": "Charles A. King & Company v. Alonzo Luckey & Company.\nAction by Broker to Recover Advances \u2014 Gambling Transactions \u2014 Options \u2014 Evidence.\nIn an action by a broker to recover advances made to cover losses on purchases and sales of corn ordered by the defendants, it is held: That the instructions as to the strictness with which said orders should be construed were erroneous as applied to the case presented; that under the evidence the transactions in question were not gambling transactions, and that certain evidence as to the \u201ckind\u201d of transactions between the parties was improperly admitted.\n[Opinion filed August 26, 1886.]\nIn error to the Circuit Court of Champaign County; the Hon. J. W. Wilkin, Judge, presiding.\nMr. Francis M. Wright, for plaintiffs in error.\nMessrs. T. J. Both and J. L. Ray, for defendant in error.\nThe plaintiffs\u2019 account and the evidence in the case show clearly that these were gambling contracts. Lyon v. Culbertson. 83 Ill. 33; Webster v. Sturges, 7 Ill. App. 560.\nAnd as to the plaintiffs not having filled their part of the contract, whether legal or illegal, preventing a recovery, it is => entirely superfluous to cite authorities." }, "file_name": "0132-01", "first_page_order": 128, "last_page_order": 133 }