The opinion
Smith, J. (on rehearing). In the petition for rehearing' it is earnestly insisted that the cause should not have been remanded for a new trial upon the question of the authorization of the purchase of the cottonseed oil, for the reasons that appellant made no objection to the verdict of the jury on that account in the motion for a new trial, and that inasmuch as this issue was submitted to the jury under conflicting testimony, sufficient to support a finding- either way — that is, that- the contract Avas authorized or that it Avas unauthorized — -the verdict of the jury is conclusive of that issue, and for the further reason that a reversal Avas not asked on account of the failure to render judgment in the cottonseed oil transaction in the briefs on the appeal to this court.
We do not agree Avith these contentions. It must be remembered that there were three separate transactions. Tavo of them Avere admitted; as to the third — the purchase of the cottonseed oil — it was denied that the purchase by the broker for the customer’s account had been authorized. But it must also be remembered that no instruction Avas given asking the jury to specifically find AAhetlier the oil transaction had been authorized. It Avas contended that all these transactions Avere gambling transactions, and void for that reason. The jury found the fact so to be, and did not find for the plaintiff upon the admitted transactions. It Avas, under this finding, unimportant to determine Avliether the oil transaction Avas authorized or not, as no verdict Avould have been returned for the plaintiff had it been found that the oil transaction Avas authorized.
Appellant did not, in his motion for a iicav trial, assign as error the failure of the jury to find Avhether the oil transaction Avas authorized. But the laAv does not require any one to do a vain and useless thing. Why find AA-liether the oil transaction was authorized or not, if a A-erdict aa-ouIc! not be rendered on that account even though the finding was made that the transaction had been authorized.
Either party had the right to ask a specific finding on this question; but neither party made that request. Appellee Avas evidently content to have the case decided upon the question whether the transactions, all three of them, were gambling transactions or not, and no other issue was submitted to the jury. .Upon this state of the record we do not think it can be said that the jury-made a finding that the oil transaction was unauthorized. That question was not specifically submitted to the jury, and it was unimportant, under the verdict of the jury, as to the gambling character of all the transactions, to determine whether one of them was.unauthorized. No useful purpose would have been served by objecting to the form of the verdict, as appellee now insists should have been done. The verdict was in proper form, and was a proper verdict to render, under the instructions of the court, if the transactions were found to constitute gambling. If one was, all were.
Appellant did not waive this question in the brief on the appeal. Upon this issue it was said in the brief on the original submission of the case: “As to the additional debt occasioned by the purchase and sale of the 60,000 pounds of cottonseed oil, there is a dispute in the testimony, by reason of which the trial jury might have found a scintilla of evidence upon which to base a verdict for appellee in so far as that lone transaction was concerned, notwithstanding the facts that telegrams were sent direct to the appellee confirming each purchase and sale involved in this case, and that statements were mailed to him from time to time, personal demands made for payment of the entire account, and letters written from May, 1937, to January, 1938, requesting payment; and it was not until April 4, 1937, the trial day in court, that appellee ever denied any item of the account. However, we assume that it can serve no useful purpose at this time to discuss the merits of the cottonseed oil transaction.”
The effect of this argument is to insist that the oil transaction was authorized by letters and telegrams, and were shown to have been authorized by various statements of the transaction mailed appellee from time to time, as well as personal demands, although there was conceded to be a scintilla of evidence to the contrary. But it was properly conceded that there was no úse to discuss the merits of the oil transaction, which was disputed, if there was no liability on the similar transactions which were admitted.
We do not think, therefore, that it can be said that the question of liability on the oil transaction was waived either in the court below or upon the appeal to this court, and the petition for rehearing is, therefore, overruled.