Ennis v. Edgar , 1910 Ill. App. LEXIS 701 ( 1910 )

Me. Pbesiding Justice Holdom

delivered the opinion of the court.

We will first pass upon what may be regarded as the subsidiary questions arising for our decision. Appellee, submitting himself to the jurisdiction of the court by answering the bill, has eliminated the question of appellants’ right to maintain it. On the other hand, the correctness of the chancellor’s action in dissolving the injunction is not challenged and the evidence on which the master based appellee’s right to an award of damages for its having been improvidently granted is not abstracted. Therefore, notwithstanding the recitation in relation to such evidence in the master’s report found in the abstract, we will not look into the record to find whether the evidence on such assessment sustains the .master’s finding. It is a rule of procedure in this and the Supreme Court, that on review" the record will not be examined to reverse a judgment or decree of the trial court. If the evidence found in the abstract does not warrant a reversal, the conclusion of the trial court will not be disturbed. The taxation of master’s and stenographer’s fees being assigned for error, we look in vain for any evidence sustaining the finding of the decree that such order was “with the consent of all the parties to the suit”. Findings in a decree, unsupported by proof or the agreement of the parties, cannot be sustained.

That appellee in his dealings with appellants was gambling we have the assurance of his testimony which remains in the record uncontradicted. But this, standing alone, does not render the transactions gambling we have the assurance of his testimony fides of appellants in these transactions made doubtful by the testimony of appellee, still appellants have by irrefutable and unchallenged evidence removed such doubt and clearly established, even to the satisfaction of the master, it appears from the findings of his report, that all the dealings in dispute were made by appellants in the usual course of business, and that all the stocks and grain purchased for appellee were paid for and actually received by appellants. Every transaction made for appellee, as is shown by the evidence and found by the master, was a legitimate transaction, and the names of the sellers and purchasers and the prices paid or received and the commodities sold or bought, were all disclosed by the evidence of appellants, which remains unchallenged. But the decree proceeds upon the theory that appellee was gambling, and therefore it is assumed the taint of illegality enters into every transaction with appellants and avoids them under the statutes of this State. The courts in this jurisdiction have uniformly held the contrary to be the law. The transactions, so far as appellants were concerned, were complete, and appellee could have had delivery of any of the commodities at any time he desired them and was ready to pay for them. Because he did not desire delivery or was unable to pay in no wise affected the legitimacy of appellants’ connection with the deals or any of them. As said in Pixley v. Boynton, 79 Ill. 351: “The intent of the parties gives character to the transaction, and if either party contracted in good faith he is entitled to the benefit of his contract, no matter what may have been the secret purpose or. intent of the other party”. The fact that the transactions were for future delivery in no way affected their legality or made them of a gambling nature. Wolcott v. Heath, 78 Ill. 437; Barnett v. Baxter, 64 Ill. App. 546; Logan v. Musick, 81 Ill. 419.

The recent case of Johnson v. Milmine, 150 Ill. App. 208, is literally on all fours with this case. The gambler was a lawyer. The brokers were sought to be tainted with gambling in the deals involved, which were many, because of knowledge imputable to them that the lawyer was gambling, and because of his known limited means, making him unable financially to care for transactions of the magnitude involved. The opinion of Mr. Justice Smith is replete with citation of authority and discussion of legal principles which are controlling of the crucial questions here involved, and to it we refer for support of this opinion.

We think this case comes directly within the holding in Pelouze v. Slaughter, 241 Ill. 215, that the fact that purchases and sales of stock made by brokers for a customer were of great magnitude, in proportion to the wealth of the customer, does not justify an inference of an intention to settle on differences only, where there is no proof of such intention and where the stocks were actually sold and delivered or received and paid for by the brokers, and there was no time when the customer could not have paid the balance due if the value of the stocks were taken into account. Appellants filled all of appellee’s orders by buying or selling the actual commodities involved in each transaction, and there never was a time during their dealings when appellants would not have delivered upon payment. The financial inability of appellee to finance the deals or the fact of his intent to gamble in every order given, can in no wise taint the appellants with the evil intent and purpose of appellee when they have, by positive evidence, shown every transaction involved to have been legitimate and transacted in the usual course of business on the exchanges where the deals were entered into. Appellants made tender of $499.64 by their bill and kept it good by again tendering that sum before the master. They are not therefore liable for costs accruing subsequent to the filing of the bill. The costs of taking testimony before the master and of the taking of depositions, including master’s report and stenographer’s fees, will be taxed against appellee. The decree of the Circuit Court is reversed and the cause is remanded with directions to dismiss the cross-bill of appellee for want of equity at his costs, and to enter a decree on the original bill of appellants for $499.64 in favor of appellee, and that all costs in the Circuit Court subsequent to the filing of appellants’ bill be taxed against appellee.

Reversed and remanded with directions.