Higgins v. McCrea

The court, through Judge Baxter, after disposing of the defense that said transactions were of a gambling character, in directions as to the law,’ to which no exceptions were taken by either party, proceeded to further instruct the jury as to the other defense, substantially as follows, to-wit:

“If you shall, under the instructions heretofore given, find that the contracts in question were made for legitimate purposes, and were therefore valid, you may,®for the purposes of this case, assume that the the sixth section of the twenty-sixth rule of the Chicago board of trade, read in evidence in this case, authorized the plaintiffs to cancel the contracts first made for defendant’s account, and substitute other and like contracts with other parties in lieu thereof, and that the defendant understood its force and effect, and consented to be governed thereby in his transactions with plaintiffs; and still the plaintiffs will not be entitled to recover in this action, because they did not, in fact, substitute other contracts with other parties, as required by the said rule, in such manner as that the defendant could enforce them, or proceed against the vendors therein for damages in a case of a failure to comply therewith.

“The cancellation of the original contracts in the manner conceded „ in the testimony, that is to say, without the specific substitution of other contracts, and without the previous knowledge or consent of the defendant, or his subsequent ratification, absolves him from all liability thereunder, and entitles him to recover back from the plaintiffs the amounts advanced as ‘margins,’ with interest thereon from the respective payments.”

Under these instructions, the jury found in favor of the defendant upon the causes of action set forth in plaintiffs’ petition, and against the plaintiffs upon the counter-claim set up in the answer, in the sum of $22,062.42.

■ A motion for a new trial has been filed, but has not yet been disposed of.