Smith and Lightner, plaintiffs in the circuit court, recovered against Rountree, plaintiff in error, a judgment for $5,614.46 for services rendered and money advanced by them, as brokers and members of the board of trade of Chicago, for Rountree at his request. The case was tried before a jury, the parties being the principal, if not the only, witnesses, and their testimony, with some correspondence by letters and telegrams, was all the evidence. The record presents but two questions necessary to be decided.
It was alleged by the defendant that on the eleventh of March, 1879, he had notified the plaintiffs in writing that thereafter he would advance them no more margins, and would not be responsible for any losses on contracts made by them in his name. To which their answer was a denial of such instruction, and an allegation that, if it had been given, it was subsequently withdrawn and waived by other instructions and actions of defendant. Specific questions on this subject were submitted by the court to the jury, under the practice allowed by the Wisconsin statute. Some objection is made to the form of some of these questions, which we do not think necessary to consider here, for the fourth question and the answer of the jury to it render the other questions and answers immaterial. That question and answer is as follows:
'Fourth. If you find there was such a contract or understanding between the parties as is mentioned in the last question, did the defendant, by his subsequent acts, declarations, directions, or conduct, waive the same and become liable for further losses incurred over and above the money so placed in plaintiff's hands? Answer. Yes.'
It was undoubtedly competent for defendant to withdraw, waive, or countermand his former order on this subject, and this could be done verbally or by actions and need not be in writing, and the fact found by the jury that he did so renders his former notice wholly immaterial to the issue. The counsel for defendant resisted recovery against him, on the ground that the sales and purchases made for him by plaintiffs were gambling contracts on the prices of the various articles of produce to which they related, never designed to be actually performed by delivery, but the damages were to be adjusted, and payments made and accepted, according to the difference between the contract price and market price at the date fixed for delivery. And on this subject he asked certain instructions of the court which were refused. The court also charged the jury that there was no evidence on this subject which they could consider. An exception was taken to this ruling, and a bill of exception purports to embody all the testimony. The evidence of the defendant on this point was that he gave the instructions to buy. He says: 'I could not say that I had any understanding on the subject of the nature and character of the board-of-trade deals,-whether the property was to be actually delivered or whether it was to be settled for.' It is obvious, therefore, that so far as plaintiff, one of the parties to all these contracts, which he now impeaches, is concerned, they were not gambling contracts, and that he had no understanding or agreement, express or implied, that they were bets upon the future price of the article.
The other party to these contracts, or rather parties, (for the contracts were numerous,) are not produced, nor their testimony given, and there is no direct evidence that any of them either bought or sold with any other purpose than to perform the agreement as its terms bound them. The plaintiffs, in answer to questions on this subject, say that in no instance had they any agreement with the parties to the contracts made by them for Mr. Rountree; that performance was not expected or intended, but a mere adjustment of differences; and they say that actual delivery of the article was made in some of them. So that as to these contracts, in regard to which the services were rendered and money advanced by plaintiff for defendant, there is no evidence whatever that they were not bona fide contracts enforceable between the parties, and made to be performed.