Defendant pleaded that the plaintiffs did not purchase or sell any grain for his account, but that the transactions in question were mere wagering contracts, intended by both as gambling upon the price of wheat, and that the moneys expended by the plaintiffs on account of the matters sued for were advanced at the city of Chicago in paying for wheat options and 'futures'; that the services alleged to have been rendered were performed in connection with such illegal transactions, which, it was averred, were in violation of the statutes of the state of Illinois.
Plaintiffs filed a reply to the answer of defendant, denying that it was the understanding and agreement of the parties that there were to be no actual sales or delivery of wheat, and that settlements were to be made by one party paying to the other the difference in values between the contract price and the market price of the wheat bought, according to fluct- [161 U.S. 397, 399] uations in the market; and also denied generally all the allegations in the answer to the effect that the transactions were gambling contracts and in violation of law.
The cause was tried by a jury, and the following facts are shown by so much of the evidence as is contained in the bill of exceptions:
On and prior to August 24, 1888, plaintiffs were partners in business at Chicago under the firm name of James E. Boyd & Bro., and were members of, and commission merchants doing business on, the Board of Trade in that city. They had a branch office at Minneapolis, Minn., at which Charles E. Handy was their agent from January 1, 1887, to February 1, 1889, Handy being succeeded on the latter date by George M. Brush. Prior and subsequently to 1888, Theodore Hansen resided at Benson, Minn., a town on the Great Northern Railway, about 120 miles west of Minneapolis, being engaged there in the business of general merchandise and grain, owning and operating a grain elevator and warehouse. Prior to the transactions between Boyd & Bro., hereinafter mentioned, Hansen had sold wheat through brokers on the Board of Trade at Chicago and the Chamber of Commerce at Minneapolis, and had had some 'option deals,' as he expressed it, and was generally familiar with the manner in which business was done on those boards.
Early in August, 1888, as a result of a conversation had with Boyd & Bro.'s Minneapolis agent a few days previously, Hansen called at Handy's office, and gave him an order for the purchase of 5,000 bushels of December wheat. Defendant claimed that in the prior conversation Handy had alluded to losses which Hansen had sustained in 'some trades' about a year prior thereto, and said 'he thought it was a good chance to make something back this fall by making some scalps.' Hansen further testified that he supposed the transactions were to be conducted for him on the Board of Trade at Chicago by Boyd & Bro., but claimed that at none of the interviews between himself and Handy was any allusion made to the Board of Trade or the rules of the Board of Trade. He also testified that it was not his intention to buy or sell any [161 U.S. 397, 400] grain on any of the orders given to Handy, but that he contemplated mere speculations on margins. Handy, however, testified that when the first order was given he told Hansen that the commission would be one-eighth of a cent per bushel; that he would have to abide by the rules of the Chicago Board of Trade; and stated that he informed Mr. Hansen what those rules were as concerned the handling of grain on that board, and also informed him that a delivery was contemplated in every trade, either by buyer or seller, which was understood by Hansen; that in case wheat was delivered he must take care of it, and pay the purchase price and interest on the money, etc.
The first order to purchase was given August 10, 1888, and from that time until about April, 1889, occasional orders to buy and sell wheat were given. In none of the transactions was wheat offered or furnished by Hansen, or to him personally, but the purchases and sales were all made on the Chicago Board of Trade, according to the rules of that board. Hansen became delinquent in the furnishing of margins on his contract. On April 16, 1889, 40,000 bushels of May wheat were bought on his account at prices ranging from 109 1/2 to 111 1/4. On April 26th and 29th following, by telegrams, and about those dates, by personal solicitation of Handy, Boyd & Bro. requested authority to 'transfer,' as they expressed it, the May wheat to June wheat. Hansen did not answer the telegrams, and gave no satisfactory response to the verbal inquiry. On April 29th, however, Boyd & Bro. sold the 40,000 bushels of May wheat, on which Hansen was then in default for margins, at 81 1/2, and the loss of $11,500 was charged against Hansen in his account on the books of Boyd & Bro. The firm then bought 40,000 bushels of June wheat at 82 1/4, and sent a memorandum notice of the sale of the May wheat and the purchase of the June wheat to Hansen, together with an account of the loss sustained on the May wheat. On May 4, 1889, Boyd's agent, Brush, wrote Hansen that Boyd & Bro. demanded an immediate settlement of his account. Personal interviews with Brush and correspondence with Boyd & Bro. followed. On June 8, 1889, the when open contracts on the books of Boyd & [161 U.S. 397, 401] Bro. with Hansen were closed, and the 40,000 bushels of June delivery wheat, above referred to, were sold on the Board of Trade, and the loss-$1, 300 and $50 commission on the transaction-was charged against Hansen. A day of two following, an account exhibiting the total indebtedness of Hansen to Boyd & Bro. ($18,248.36) was delivered to Hansen, and payment thereof demanded, which was refused, and the next day this action was brought. There was no controversy at the trial as to the correctness of any of the items of the account, other than as to the legality or illegality of the transactions, with the exception of the loss resulting from the 40,000 bushels of June wheat, asserted by Boyd & Bro. to have been purchased by authority of Hansen, but which Hansen claimed he had never authorized, and hence should not be held liable for the loss thereon, nor for the commission charged.
As to all the items of the account, plaintiffs contended that the transactions were legitimate purchases and sales of wheat under the rules of the Chicago Board of Trade; that deliveries were intended by the parties to the contracts on the Board of Trade; that Boyd & Bro. and Hansen understood that actual purchases and deliveries of wheat were intended. On the other hand, Hansen claimed that no actual purchases or sales of wheat were agreed to be made or were intended, and that the orders given by him were mere wagers upon the prices of wheat,-deals in futures upon the rise and fall in prices of wheat, according to the quotations on the Chicago Board of Trade.
The court instructed the jury very fully as to the law of the case upon the differing contentions of the parties, and the defendant took seven exceptions to the charge of the court. But one instruction was asked on behalf of defendant, and that was given to the jury. It was as follows:
A verdict was returned for the full amount claimed by plaintiffs. Judgment was entered thereon, and the court overruled a motion for a new trial. The case was then brought to this court by writ of error.
Chas. E. Flandrau, for plaintiff in error.
Ralph Whelan, for defendants in error.
Mr. Justice WHITE, after stating the facts in the foregoing language, delivered the opinion of the court.
The assignments of error set out in the record are 15 in number. The first 5 are not pressed in the argument for plaintiff in error, and we only briefly notice them.
In No. 1 it was assigned as error that the evidence conclusively showed that the transactions upon which the plaintiffs below claimed a right to recover were wagering and gambling contracts, and that the court erred in not so holding and the jury in not so finding.
This assignment is, of course, without merit, since it asks us to determine the weight of proof, and thus usurp the province of the jury. There was no motion made at the close of the evidence to direct a verdict, and both parties therefore agreed to the submission of the issues of fact to the consideration of the jury. In the absence of such a request, we must assume that there was sufficient evidence to warrant the court in permitting the jury to draw the inferences proper to be deduced [161 U.S. 397, 403] from the evidence in the case. Moreover, the bill of exceptions filed in the record does not purport to contain all the evidence.
The second, third, fourth, and fifth assignments of error cover exceptions to the admission in evidence of the rules of the Board of Trade at Chicago, the rules of the clearing house of that board, and the admission in evidence of certain testimony given by James E. Boyd, one of the plaintiffs, explanatory of the clearing-house rules, and of the manner in which the payments of losses and profits accruing under the various transactions involved in this action were made by the clearing house of the Chicago Board of Trade. Evidence had been introduced on behalf of plaintiffs that the agreement with Hansen was that the transactions were to be conducted under the rules of the Board of Trade at Chicago, and that such rules were explained to him. The rules and regulations in question were therefore competent evidence. Bibb v. Allen, 149 U.S. 481, 489 , 490 S., 13 Sup. Ct. 950. The oral testimony of Boyd tended to explain the purport of those rules and the transactions thereunder, and was consequently relevant.
The sixth assignment relates to the overruling of a motion, made at the close of the evidence for plaintiffs, that the court instruct a verdict for the defendant; and assignments 7 to 15, inclusive, attack portions of the charge to the jury. As to the alleged error in refusing to instruct a verdict at the close of the evidence for plaintiffs, it is sufficient to say that it has been repeatedly held by this court that when, after such a motion, the defendant introduces testimony, as was done in the case at bar, an exception to the action of the court in refusing to direct a verdict is waived. Runkle v. Burnham, 153 U.S. 216 , 14 Sup. Ct. 837.
Assignment 7 asserts that the court erred in giving the following instruction:
The exception taken to this portion of the charge was that the defendant in his testimony, had 'stated and developed the meaning of the word 'scalp,' and that the charge excepted to was a denial of actual, material testimony introduced on the part of the defendant, and material to his defense.' In his brief, counsel for plaintiff in error asserts that the charge misled the jury, and, in effect, withdrew the evidence on the subject from the jury, and wholly annulled its force. Concerning this alleged error, the trial judge, in his opinion denying the motion for a new trial, said:
In view of the evidence contained in the record and referred to in the opinion of the trial judge, there was no substantial error committed in the portion of the charge now under review. The language of the court could not reasonably be understood by the jury as meaning more than that the court was of opinion that the precise meaning of the term in question had not been clearly shown by the evidence. The observations, however, of the court were mere comment upon the evidence and were evidently not intended, and we do not think could have operated, to prevent the jury giving such weight as they saw fit to the explanatory testimony on the subject.
Assignments 8, 10, 11, and 12 may be considered together. They allege error in the following portions of the charge:
The sole objection made upon the argument to these several instructions was, in substance, that under the evidence in the [161 U.S. 397, 407] case the court was not warranted in assuming, or the jury in finding, that the transactions between Boyd & Bro. and Hansen might be valid. Obviously, however, such an objection cannot prevail in the absence of a motion on behalf of defendant at the close of the whole evidence for an instruction in his favor. Nor, if such motion had been made, could we review a ruling upon it in the condition of the record in this case, as the bill of exceptions does not purport to contain all the evidence.
Assignment No. 13 covers instructions in which the court repeated plaintiffs' theory of the transactions, stated the rules of law governing the question as to when a contract was void as a wagering or gambling contract, and the facts necessary to be proven to the satisfaction of the jury before they could properly return a verdict to that effect. These instructions embraced a half dozen paragraphs of the charge, one paragraph in particular being very lengthy, and cover more than a page and a half of the printed record.
The exception noted to this part of the charge was: 'That there is nothing in the pleadings, evidence, or record in this action to support or justify the theory of the plaintiffs stated by the court in this part of its charge here excepted to; that the portion of said charge here excepted to is prejudicial to the defendant, and is misleading to the jury, is error in the charge and error in law on all the evidence and facts in the case.' The assignment is without merit. As all the evidence is not shown to be contained in the record, we must assume that there was evidence in the case tending to support plaintiffs' theory of the case stated by the court. The exception is, moreover, too general, uncertain, and indefinite to merit detailed consideration.
Assignment No. 14 asserts that the court erred in giving the following instruction:
The exception taken to this instruction was 'that the offsets and modes of settlement stated and referred to in the part of the charge here excepted to belong to the jury as proper and competent evidence, to be considered by them in determining the entire intentions of the plaintiffs in respect thereto, and as affecting and showing the original intention with which said contracts were made and were to be executed and closed; that said charge here excepted to characterizes said evidence as no evidence, and virtually takes the same from the jury; that said charge here excepted to is prejudicial to the defendant, is misleading to the jury, and is otherwise error in law.'
We are referred by counsel for plaintiff in error, in his brief, to the language of the exception, as his argument upon this assignment.
The court had informed the jury what was the theory of plaintiffs upon which they claimed a right to recover. (See tenth assignment of error, supra.) Pursuant to their theory, plaintiffs contended that the purchases and sales of wheat on account of the defendant were to be made on the Chicago Board of Trade with the members thereof, and the contracts of defendant were to be governed by the rules and usages of such board, and that in every instance an actual delivery of wheat was intended. The contracts referred to in the criticised instruction were the contracts claimed to have been entered into by plaintiffs on account of defendant with members of the Board of Trade at Chicago. Just before giving the instruction, the court had said to the jury:
In determining the conduct of the parties to the contracts with reference thereto, particularly in view of other instructions of the court, we think it beyond question that the jury must have understood they were authorized to take into consideration the modes of offsets and settlements by which the contracts were canceled. We do not think the instruction was amenable to the criticism made on behalf od defendant.
The greater part of the brief of counsel for plaintiff in error is devoted to argument in support of the contention that upon the undisputed evidence in the cause a verdict should have been directed for defendant. Aside from the circumstance to which we have before called attention, that the bill of exceptions does not purport to contain all the evidence introduced at the trial, this contention is fully answered by what we have said above in disposing of the first assignment of error.
We are of opinion, however, that the instruction covered by the ninth assignment of error was erroneous. The instruction is as follows:
It was not claimed that Boyd & Bro. had a general authority, by virtue of their dealings with Hansen, to make the so-called transfer; and, just preceding the instruction quoted, the court had called the attention of the jury to the fact that there was conflict in the evidence as to whether or not specific authority had been given to make it. Hansen was in default for margins on the purchase of May wheat, the price of the article had fallen very greatly, and on April 29, 1889, Boyd & Bro. had the right to close out the contract.
The instruction assumes that Boyd & Bro. and Hansen were so situated with reference to each other-as was the fact-that power could have been obtained from Hansen to make the purchase of June wheat, if he had wished to give the authority, and that the authority was asked for and was not given. Under such circumstances, we are of opinion that the unauthorized voluntary act of Boyd & Bro. could not be said, as matter of law, to have been ratified by Hansen by his mere retention, without complaint, of an account and statement rendered to him 'that said change had been made,' or, in other words, that Boyd & Bro. had made a new purchase for his account.
In Supervisor v. Schenck, 5 Wall. 772, 782, this court said: 'Ratification may be by express consent, or by acts and conduct of the principal inconsistent with any other hypothesis than that he approved and intended to adopt what had been done in his name.' The mere retention by Hansen of a report that an unauthorized purchase of 40,000 bushels of wheat had been made on his account was entirely consistent with the hypothesis that he did not approve, and did not intend to adopt, what he had previously declined to authorize. The mere silence of Hansen was certainly not necessarily indicative of an intention to adopt the unauthorized act of Boyd & [161 U.S. 397, 411] Bro., and it was, therefore, insufficient of itself to warrant an instruction that it constituted in law an adoption of such act. The question of whether the evidence established ratification should have been submitted to the jury.
The fifteenth assignment of error covers an instruction to the jury that, if facts and circumstances introduced in evidence by the plaintiffs which tended to show that the order for the transfer of May wheat to June wheat was given, in connection with a number of other recited facts were found by the jury to exist, they would constitute a ratification. In view of our holding with reference to assignment No. 9, it will be unnecessary to review this last assignment.
We find, therefore, that there is error in the record solely with reference to the instruction contained in the ninth assignment of error,- that, if certain facts were found by the jury, the defendant should be held to have ratified the purchase on April 29, 1888, of 40,000 bushels of wheat for June delivery. The question arises as to the proper judgment to be entered. The plaintiffs below recovered judgment for the full amount of their claim. The June wheat purchase and sale were distinct and separable from the other transactions upon which a recovery was had. The amount of loss arising from the purchase and sale of this wheat, including the commission charged by Boyd & Bro., is clearly ascertainable from the evidence contained in the record, while the interest thereon embraced in the judgment is matter of simple calculation. The rule has been adopted by this court that it is proper, either for the trial court upon an application for a new trial, or for an appellate court in reviewing a judgment, to permit the party, in whose favor a verdict or judgment has been returned or entered, to avoid the granting of a new trial on account of error affecting only a part thereof, by entering a remittitur as to such erroneous part, when the court can clearly distinguish and separate the same. Koenigsberger v. Mining Co., 158 U.S. 41 , and cases cited, page 53, 15 Sup. Ct. 751; Construction Co. v. Seymour, 91 U.S. 646 , 656.
Following the practice pursued in the lastcited case, and also in Railroad Co. v. [161 U.S. 397, 412] Harmon's Adm'r, 147 U.S. 571, 590 , 13 S. Sup. Ct. 557, we will not reverse the judgment below, if the defendants in error will remit the excess therein in the particulars heretofore indicated; that is, the loss on the purchase and sale of the June wheat ($1,300), the commission charged in that transaction ($50), and interest on those items from June 8, 1889, to the date of the verdict.
Ordered, that if the defendants in error will within a reasonable time during the present term of this court file in the circuit court of the United States for the district of Minnesota a remittitur of such excess, and produce and file a certified copy thereof in this court, the judgment, less the amount so remitted, will be affirmed; but, if this is not done, the judgment will be reversed. In either event the costs must be paid by defendant in error.
Mr. Justice BREWER, not having heard the argument, took no part in the decision of this cause.