Watte v. Wickersham

Nebraska Supreme Court

Watte v. Wickersham

43 N.W. 259, 27 Neb. 457, 1889 Neb. LEXIS 254

CourtNebraska Supreme Court

DecidedOctober 3, 1889

StatusPublished

Cited by3 cases

This text of 43 N.W. 259 (Watte v. Wickersham) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Watte v. Wickersham, 43 N.W. 259, 27 Neb. 457, 1889 Neb. LEXIS 254 (Neb. 1889).

Pincite

Opinion

Cobb, J.

This cause was brought to this court on error from the district court of Lancaster county.

The plaintiffs in error, Joseph M. Watte, Frank H. Axtell, and Finley A. Forbes, partners by the firm name of Elmendorf, Watte & Co., alleged, in the court below, that they had been and were doing business as general commission merchants in grain and provisions in this state, and at Chicago, Illinois; and that Charles A. Wickersham and Henry B. Ware, defendants, were doing business at Lincoln, as partners; that the defendants had been engaged in buying and selling grain and provisions through plaintiffs as agents; that on October 12, 1886, the plaintiffs rendered their account current with defendants, by which there was due plaintiffs a balance of $1,155.06, with interest at seven per cent, which the defendants promised to pay, but neglected and failed to do; with demand for judgment, elc.

The defendants answered denying every allegation; and for a second defense set up that the plaintiffs solicited them to embark in speculations in options in grain and pork on the Chicago market, and that by an agreement they put up in the hands of the plaintiffs certain sums of money as margins and guaranty to cover any decline and loss in the market value of such articles of produce as they ordered and purchased options upon; that it was agreed that they were to be liable to the plaintiffs only for the difference [460]*460between the options and privileges ordered and purchased for them, and the real market value of the articles subsequently, and that the plaintiff should hold such margins as security for any sums that might be found due them for decline and losses in the price and value of grain and produce on settlement of differences in the purchase and sale of the same on their account; that defendants never agreed to receive any produce bought, or to deliver any sold, and that all transactions by the plaintiffs on their account were speculations merely on the rise and fall of the market at the produce exchange in Chicago; and were wagers on that result and event, and were gambling transactions superinduced by the plaintiffs for their benefit and profit, and that they ought not to recover any part thereof, because all of such contracts, and option gains and losses, were illegal and void.

The plaintiffs replied denying all the allegations of defendants.

There was a trial to a jury with a verdict for the defendants and a judgment for the defendants’ costs.

The plaintiffs’ motion for a new trial was overruled, and exceptions duly entered on the record, and a bill of exceptions settled and allowed.

The action was brought as upon an account stated; but the plaintiffs did not rely upon their evidence, which they introduced to prove the delivery of the statement of the account to the defendants, and their admission of its correctness, either by express words or by its retention without objection, or offer to return it for sufficient length of time to raise by presumption an admission of its correctness, and a promise to pay it; but, on the contrary, virtually waived and abandoned any advantage which they may have possessed, by reason of their account having been stated; and introduced witnesses, as well as documentary evidence, to prove their claim without reference to the advantage of an account stated. In reviewing the case, there[461]*461fore, I will not deem it necessary to refer to those portions of the evidence, the instructions, or the brief of counsel, which relate exclusively to the subject of account stated, but will endeavor to treat the case as the parties did — as I conceive. But here I am met by a difficulty of considerable magnitude: Was it an action for money had and received by the defendants of and from the plaintiffs, money laid out and expended by the plaintiffs for the use and benefit of the defendants, at their request, or for work and labor performed by the plaintiffs for the defendants at their request?

The “Statement of Account,” attached to the petition, fails to aid us at all in the matter. I here copy it:

Free access — add to your briefcase to read the full text and ask questions with AI