The opinion
Dissenting opinion by
Mr. Justice Barnes. The only question involved is whether there was a mutual intent not to deliver the grain bought and sold for appellee’s account but to settle on “differences.” That a mutual intent must be established is not questioned. The majority opinion also recognizes that contracts for the future delivery of grain, such as were made here on the Board of Trade, are valid (Wolcott v. Heath, 78 Ill. 433 ; Logan v. Brown, 81 Ill. 415 ), and that settlement by the so-called method of “ringing up” trades made between brokers thereon has the legal effect of delivery (Board of Trade of Chicago v. Christie Grain & Stock Co., 198 U. S. 236 , Cleage v. Laidley, 79 C. C. A. 284 , 149 Fed. 346 ; Nash-Wright Co. v. Wright, 156 Ill. App. 246 ; Cutler v. Pardridge, 182 Ill. App. 350 ), and the evidence shows that the contracts in question were of that character and were executed by such deliveries. But while the opinion recognizes the validity of contracts such as the evidence shows Booth made, and that the methods of closing them had the legal effect of delivery, yet it holds that Booth nevertheless did not intend to make deliveries but to settle on “differences.” This seems much like admitting the premises and denying the conclusion. Appellee himself did not contend that there was any express understanding that there would be no deliveries or that the settlements were to be made on “differences,” and testified to no facts from which alone such an understanding can .be inferred. On the contrary, he expressly testified that nothing was said about it, and Booth expressly .testified that there was no such understanding and that he intended and stood ready to make deliveries on his contracts. In this he was corroborated by proof of .his entering into contracts for appellee’s benefit with other members of the Board of Trade,—the validity of which is not impeached or even questioned,—and by executing them in a manner conceded in said opinion to be legal and by showing his obligations thereunder and .his financial ability to carry them out regardless of whether appellee secured him with “margins,” thus clearly demonstrating his intention to make deliveries and not settle on the mere “differences” of market prices.
But it is said in the opinion that Booth admitted that he did not receive any grain on these contracts and that they were closed before maturity. If they Were “rung up,” thus making a legal delivery, no grain had to be actually received, and the fact that they were closed out before maturity did not make them illegal transactions in the absence of any understanding that they should be so closed. There was no proof of any such understanding. As was said in the Nash-Wright case, supra:
“The mere fact that the client had bought with the expectation, in case the market were favorable, of reselling before the time of delivery should arrive and that the broker knew this, would not render their transaction illegal. The law does not prohibit a. man from entering into a contract for the purchase of property to be delivered to him in the future or from ordering an agent to enter into such a contract, even though he may expect under certain contingencies, to sell his rights before maturity and to take his profit or suffer Ms loss. Such a transaction is legitimate business speculation.” (p. 252.)
On a very similar state of facts in Johnson v. Milmine, 150 Ill. App. 208 , the court said that it ivas unbelievable that the broker in that case would have consented to enter into contracts with other members of exchanges which required deliveries and receipts of commodities dealt in (as was shown by the evidence to be the facts in the case at bar), and at the same time agree with the customer that as between him and the broker he should not be required to receive commodities purchased on his order or to deliver what' was sold by him. Repudiating the reasoning in that case, the foregoing opinion says: “In the first place there is no evidence in the record as to what the intentions of these third parties with wiiom Booth contracted were, nor whether the contracts entered into with them were valid or invalid; the second place, the course of dealing shows conclusively that the plan was that Booth should be protected fully by the margins which complainant was to advance from time to time.” Not only were the intentions of the “third parties ’ ’ not involved in the issues, and the validity of their contracts in no manner impeached in the record, but, in the absence of any evidence on either, the law-will not presume their intentions were unlawful or their contracts invalid. Besides complainant made no such contention and the pleadings raised no such issue, and the contracts made with them are such as the majority opirnon concedes are legal.
Nor is the second conclusion tenable. The mere fact that in the course of trade complainant put up a part of the purchase price by advances called “margins,” a customary method of dealing not only on the Board of Trade, but in other lines of business where the full purchase price is not due until the time of delivery, does not of itself render the transaction illegal, and no court has, to the writer’s knowledge, ever so held. As a circumstance it is perfectly consistent with a legal purchase.
The writer regards the decision in this case as out of harmony with a long line of previous decisions of this court upon a similar state of facts, including the Johnson, Culver, Wright, cases, supra, and Kerting v. Sturtevant, 181 Ill. App. 517 , in all of which due regard was had for the applicability of the Supremo Court decisions on this subject. What was said by the court in the last cited case is particularly applicable here, namely:
“There is no evidence of any understanding and agreement between plaintiff and defendants that mere differences shall be paid per se without anything further being done, but each transaction was begun by an order from the plaintiff to buy or sell grain at a fixed price, and the evidence shows that actual purchases and sales were made by defendants in obedience to such orders. The plaintiff disclosed no desire or intention to gamble in grain with defendants, and it is clear from the evidence that defendants had no purpose or intention to gamble in grain with him, and that they in good faith made actual purchases and sales for him by his order.” (p. 519.)
Also, pertinent to the facts is the language of Mr. Justice Holmes of the United States Supreme Court, in the case of Board of Trade of Chicago v. Christie Grain & Stock Co., supra:
“It seems to us an extraordinary and unlikely proposition that the dealings which give its character to the great market for future sales in this country are to be regarded as mere wagers or as ‘pretended’ buying or selling, without any intention of receiving and paying for the property bought, or of delivering the property sold, within the meaning of the Illinois act. ’ ’
The burden of proof was on appellee to prove by a preponderance of evidence that the indebtedness for which judgment against him was obtained grew out of gambling transactions. To hold that the burden was met by such meager evidence and circumstances as were relied on in the case at bar, is to place upon methods of doing a legitimate business through a commercial institution dealing, as is well known, not only with customers from all over this country but outside of it, such restraint as, in the language of our Supreme Court in Wolcott v. Heath, 78 Ill. 433 , “would limit commercial transactions to such a degree as could not but be prejudicial to the best interests of trade.”