Dwight v. Badgley

27 N.Y.S. 107, 75 Hun 174, 82 N.Y. Sup. Ct. 174, 58 N.Y. St. Rep. 585

• Court: New York Supreme Court
• Decided: January 12, 1894
• Status: Published

Opinions

FOLLETT, J.

Hedge, the plaintiffs’ principal witness, and with whom the defendant had his transactions, was the New York agent of the plaintiffs. He testified:

“In these transactions I was associated with Dwight and Gillette as broker, and I received my commissions from them; and in each one of these transactions I was paid my commissions by Dwight and Gillette, the plaintiffs.”

The defendant testified;

“Q. What was your intention in regard to these transactions, and to the delivery of this wheat, and the purchase and sale of it; at the time you made these transactions? A. My intention was entirely to buy and sell on options, and to adjust the differences. Q. Between the market price of buying and the market price of selling? A. Yes; that was distinctly stated to Mr. Hedge. Q. Did he state that to you? A. That was distinctly understood. Q. Was there anything said in regard to how the profits or losses should be adjusted? A. Most assuredly. Q. What was said? A. I cannot remember the specific conversation, but the substance of it was he would buy and sell on options, and the difference I should have, if any, in my favor. Q. But, if it) was a loss, you should lose what you put up? A. Yes. Q. And - that was so in regard to each one of these transactions? A. Yes; each and every one.”

Here is positive evidence that it was distinctly stated between -the plaintiffs’ agent and the defendant that the contracts were to be gambling contracts. The knowledge of the plaintiffs’ agent is their knowledge, and it is binding on them. It is conceded that none of the grain mentioned in these transactions was ever delivered, and there is no evidence that the plaintiffs owned any grain, or that they purchased any for delivery to the defendant. All of the purchases were for future deliveries, and the statements cf the transactions rendered by the plaintiffs, and their bill of particulars, corroborate the testimony of the defendant that the transactions were intended by both parties to be wager contracts. The plaintiffs’ agent did not deny that he had the conversation with the defendant, as testified by the defendant. It is true that he testified that he intended that the grain should be delivered. It is competent for a person to testify that he engaged in a transaction in good faith, or with a particular intent; but, if the transaction be such that from it, or from the other evidence in the case, a different intent may be fairly inferred, the question with what intent is one for the jury. If the testimony of a party that he committed an act which, if done- with a lawful intent, would be innocent, but, if with an unlawful intent, a crime, is to be held to be conclusive, convictions in criminal cases in which intent is a material fact will be quite difficult. The intent with which these parties bought and sold may be inferred from the course of dealing between them. Kenyon v. Luther, (Sup.) 4 N. Y. Supp. 498. I think the evidence presented a question of fact for the jury, and that the court erred in directing a verdict for the plaintiffs. The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.