RICHTER": FRANK.
859
'and what 'they cost lhem ·lnnded in Saline county, could not beconsidersd by the jury. There was evidence in the case to warrant the ainount 'Of the verdict. It is true that the conclusions ofthe jury must in pat1; have been predicated upon expert testimony; but,'if:that testimon'y was competent, its probative force was for the jury. It would itivolve a contradiction in practice for the court to hold that certain evidenOEl was admissible, fot the establishment of a. given fact, and then say that, al" though it carried satisfaction to the minds of the jury, the court would not abide the finding, as it may have been rather ptoblel1latical than founded<lQ· known faots. .
RICHTER f1. FRANK. ·
(Clrcuit Court, N. D. IlZinois. Harch 17, 1890.) bought stock in a land and cattle company from B. Bros., with the option of reselling to them within a certain time! and defendant guarantied performance of ,the contract by S. Bros. Afterwards thIS company sold out to another, and transferred,to itall its property; but plaintiff had been asked. consent to the sale and to take 'stock in the new company in exchange for his,alid had refused, saying he relied on defendant's guaranty. Plaintiff's stock had never been transferred to hi.m on the books of the company, and remained in the name of S. Bros., who voted on it in voting for the sale, but there was stock enough besides this to authorize the sale. Defendant also owned stock and voted on it. HeZd, that defendant was not released from his guaranty. to SAMlI-'GAHBLING CONTRAOTs-OPTION TO Buy OR BBLL STOOL A contract by which stock is sold at a certain price with the option to the purehaser to resell it at a futllre time for an increased price, whi.ch increase is only the amollnt of interest Which, by the time for exercising the option, would accrue on the amount paid fpr the stock, is not a gambling contractwlthi.n Rev. St. Ill. e. 88, lIllO, W:hioh makes it a penal offense to give an option to buy or sell, at a future time; stock in any railroad or other company, and declares such contracts to be gambling contracts. . 8.S4IfB-EXEOUTION IN ANOTIIER STATE.
1.
G17A'BANTr-RELEASE OJ!' GUARANTOR.
Where a contract III executed in a state in which. it is valid, and a person there to guaranty its performance, the guaranty.w valid, though it fa actually af:fiXed in a state in whi.ch the contract is void.
At Law.
O. H. Renny, for plaintiff. A. for defendant.
BLODGETT, J. This is an action against defendant as guarantor upon a contract, dated Decembor 12, 1885, between the :firm of Swan Bros., doil1ft bllsiness at Cheyenne, Wyo., parties of the first part,and the plainti,fi, 8S party of the second part. The contract in question recites, insubsfunce, that the party of the first part, SwahBros., has sold to plaintifi550 shares"of $100 each, in the capitalstock of the Horse Creek Land&Catde Company of Wyoming Territoryt for which the plaintiff has paid to them $55,000, on condition that plaintiff should have the right to elect to resell said stock to Swan Bros. ,at .any time between the
860
FEDEML REPORTER,
vol. 41.
15th of December, 1888, llnd the 1st of January, 1889, fOf:thestlIDol $71,5QO, ,on the tender of the stock to them in the manner specially previde<lfor in the contract. And the defendant, by /;tn agreement written at the foot of the odginal contract, guarantied the performance by Swan. Bros. of all the stipulations, covenants, and agreements in said contract, on their part to be performed · . It ig conceded that plaintiff elected to resell the stock in question, and gave notice of such election in l;l.pt time to the Swan Bros. ,and that he also, withlnthe time limited by the contract, tendered .the stock to the Swan Bros., as required by the contract, and that they flliled and refused to pay the plaintiff the sum of $71,500 therefor, and this suit is brought to recover from defendant the amount which Swan Bros. should, by the terms of their contract, have paid the plaintiff for the stock. The defenses are: (1) That, Rfter the making of said guaranty by the defendant, all the assets Qf the .Horse Creek Land & Cattle Company were, without the knowledge and assent of plaintiff, sold to the Cheyenne Land & Live-Stock Company, thereby rendering the stock so sold by Swan Bros. to plaintiff valueless, and so changed the of the contract guarantied by the defendant as to release ·defendant from his. (2) That the contract in question between Swan Bros. and plaintiff is a gambling contract, within the provisions of section 130, c.·38, Rev. St. Ill.; and as the defendant's guaranty was made in the state of Illinois, it is void as a violation of'said statute. Ips conceded that, in the latter part of the summer. or in the fall, of 1886, the Horse Creek Land & Cattle Company sola to the Cheyenne Land & Live-Stock Company all its lands. cattle, and perEipnalproperty of every. description, for which the stockholders in the Horse Creek Company wer(fto receive what was deemed an equivalent in the. stock and bonds.ofthe Oheyenne Land & Live-Stock Company. It is also conced,!3d;that plaintiff never had. the 550 shares of stock transferred to him upon"the books of the Horse 'Creek Company, and that Swan Bros" in whose name the stock was allowed to stand, voted upon itin favor of the of the property the Horse Creek Company to the Cheyemle Land & Live-Stock Company. The proof, I think, wholly fails to show that the plaintiff ever consented to such transfer, or was a party to it. The proof does show that, some time in the summer 0[1886, before the sale of the assets of the Horse Creek Company was rnade·to the Cheyenne Company, the plaintiff had notice that such a disposition of the assets of the Horse Creek Company was contemplated, and he was asked to' assent to it, and to accept the stock and bonds of the Cheyenne Land &' .JAve-Stock Company in place of the stock transferred to him by the Swan Bros. under the contract, and that he declined to do so, saying, in substance, that he relied upon the defendant's' guaranty, and would not'· conseht to any.change in the char!lcter of the stock. The proof also shows that defendant was a holder of stock in the Horse Creek Company, and voted in favor of transferring its assets to the Cheyenne Land & Liva-Stock Company, which might of itself be a sufficient answer to this branch ;ofthe defense, although I do not deem it necessary
or
RICHTER t1. FRANK.
861
to decide as to the sufficiency of this fact alone as a defense. The proof also shows that the capital stock of the Horse Creek Company consisted of 2,000 shares, and that the vote of the 550 shares of stock sold to the plaintiff was not needed to confirm or ratify the transfer of the assets to the Cheyenne Land & Live-Stock Company. It is, therefore, quite clear that the first position taken b.y the defense is not sustained by the proof. As to the second position of the defense, that the contract guarantied by the defendant is a ga,mbling contract, within the provisions of the Illinois statu..te, much reliance is placed by defendant on the case of . Schneider v. Turner, 22 N. E.Rep. 497, lately decided by the supreme court of the state of Illinois, (and not yet officially reported, but a manuscript copy of the opfnion has been furnished by the defendant's counsel,) where an· agreement to sell shares in one of the street railroads of this <}ity, at a per share, if payment was made by a certain day, was held to be within the statute, and void. Section 130, chapter 38, of the Illinois Revised Statutes maJ,<.es it a penal offense to contract to have, or to give, an option to sell or buy at a future time any grain or other commodity, stock .of any railroad or other company, etc., and provides that aU contracts made in violation of this section shall be considered gambling contracts, aqd void. It is a sufficient answer, I think, to this position of as I construe this contract, it is not a gambling contract defendant and within tile provisions of this statute. It is true the contract, by its letter, purports to be a sale of the 550 shares of stock to the plaintiff, with an option to resell at a stated price, if the plaintiff so elects, within a limited time, but, when considered altogether, the sale, as I construe it, is conditional up to the first of January, 1889. It is conceded that the amount to be paid by the Swan Bros. to the plaintiff under this contract, if he elected to return the stock to them, was the original $55,000 paid by the plaintiff to Swan Bros., and simple interest thereon at the rate of 10 per cent. per annum for the term of three years, and the obyipus intent,ionof the parties was that the plaintiff had until the 1st of January, 1889, to decide whether he. would keep the stock, or return it mthe Swan Bros. and receive back his money audiO per cent. interest. This is my conclusion, not from the parol proof as to the understanding of the parties in regard to the meaning and import of the contract,but from the language of the contract itself when all considered together. The contract begins with the recital that the Swan Bros. are about to sell the 550 shares of stock to plaintiff, and that plaintiff is desirous of purchasing the same with a guaranty of profit thereon. And in the first article it is stated that plaintiff agrees to purchase the stock under the provisions and conditions thereinafter set forth, and the conditions so set forth are that plaintiff shall have the right to return the stock to the filwan Bros. between the 15th of January, 1888, and, the 1st of January, 1889, and receive his $55,000 and 10 per cent. interest. Up to that time the sale is conditional. The testimony of Alexander H. Swan, one of the parties to the contract, is confirmatory of this view, so far as such testimony may be· considered. confirmatory in construing a contract of He testifies that his firm considered the transaction to
vol. 41. beoply a loan by plaintiff to Mlditin bhhis $55,OOO,'and plaintiff only held the stock; as'eollateral; The certificates of stock were delivered to fthe plaititift'{btit by the t6rms'and:conditions of the con:tract'he was given 'until:tbe'l!st':of':January,1889ltodeoideorelect;whether he would keep the stdCk:or'return: ikThe' trans8<ltion seemstoi mean entirely natural and neither; withitt,the:terms'of the "Illinois statute, or 'the miscbiefdlt: was iIitendedtd remedy. ' It contains no element, as it seems to mee, a gambling ,oontract, when to this view of thehnport and lep;aVeffect of the contract thefactthlit the whole negotiations between the plaintiff' and Swan Bros; were conducted by defendant 8$ the agent of Swan Bros.; that plantiff tqok' the stock with the understanding and assurance that defendant would guaranty the contract, and that all the negotiations and the terms of the contract Were had and agreed upon in Ntlw York between the plaintiff and defendant eontractwas extlcutedj that the contract itself was executed 'in Nebraska, where it was entirely lawful,andthat,' in appending his guaranty in Chicago, the defendant had 'done Mmore than he had agreed to do in New York, and :without whichragreel:rient the plaintiff wot1ldnothave parted with his, money. It seems to rile defendant should not be heard to invoke this Illinois statute"as a defense. The issueR" are, therefore, found foJ.' the plaintiff, and judgment will be fo1' the full; amount of the money. ,to be paid with interest since January 1,,1889·. ,: .
UNITED STATEs t1. CDl.8trl.ct OO'UR't" L
, Maroh 15,1890.> ','
BOUNDAl1Ijlis-AnTI.,IOIAL-LINBS DJV.IjlBG.IjlNT nOM DBSORIPTION IN DJ!BD.
Where the grantor in a'deeld conveying land to the United States iii to fence the Same, tbe placing of a walllIpon a line diyer¥ing from that called fol' by the deed cannot be taken to designate the true line, In tile absenoe ot evideuoe of assent thereto by the United States. ''
.. ,S.ullI:--MoNUMBNTS.t.ND COtJRSBs"..M....sUBBMBNT&
Known and visible monuments and comp888 coursO& muat prevail over meaaurements in 'establishing boundaries. (IMlabui by the Oourt.) "
At Law. GeorgeE. Bird,)1. S. Atty. ' William R. Anthoine, £6rdefendant.
,
This is an'abtion of trespass quareclamumjregU, brought Cape Eliza. beth in this district, upon which the United States has erected two lighthouses, and the adjoining land ,owned by the defendant. ,. 'l'he plaintiff put in evidence two deeds. The first, from Edwardnnd Enoch Dyer, dated May 24, 1826, conveyed to the United States a tract of land con·taining about 12 acres, bounded, beginning at a stake at high-water marki
to determine the boundary lines between, a tract of land on
NELSON, J.