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affect the prices of commodities or things sold, as sufficient to annul contracts of sale or barter, the business and commerce of the world would, at once, come to an end. In a fair and legitimate transaction the parties proceed upon the conditions then known to them, and fix the price of the thing sold in the light of such conditions and in the absence of fraud, such a transaction will stand, though it may turn out afterwards that the conditions upon which the parties acted were wholly illusory and misleading, whereby one of them made a large profit and the other suffered a serious loss.

Each party to a bona fide sale or trade assumes all the chances and takes all the risks of the fluctuation in the market of the price of the thing he gets or does not get. After the sale or trade each party stands in precisely the same relation to the thing he gets as if he had not received it from the other party at all but had made it himself or had always owned it.

Sec. 31. And these observations apply to contracts for the future delivery of property at a price fixed at the time of the contract or to be fixed by the market price at the time of delivery. In such a case nothing is dependent on chance or hazard or uncertainty so as to make the contract a gambling transaction because, the delivery which is the main thing is to be made in any event and the price of the thing delivered, whether fixed at the time of the contract or at the time of the delivery, is a collateral incident. If the price be fixed at the time of the contract, it may not be the same at the time of the delivery or if it be fixed at the delivery, it may not be the same as it was at the time of the contract, but in either case it is fair for one as it is for the other and this variation in the price is not allowed to taint the transaction with the immorality of gambling and thereby make it void. The courts have held that it is absolutely legitimate to fix the price in this way. Both parties to such a transaction get quid pro quo and it is a basic principle in Political Economy that a fair bargain is a mutual benefit to the persons between whom it is made.

Sec. 32. But this is not true of a contract where "margins" are deposited and their return, either with or without a profit, is made dependent on the fluctuations of the market in the future in the price of the article, in respect of which the deal is made, there being no intention on either side to deliver the article itself or pay for it. In such a case one of the parties must be loser and the other winner and one will get something for nothing and the other nothing for something, and the courts have uniformily held that such a contract is a wagering transaction and while not always employing the same terms they have concurred in the view that by such wagering contracts, the parties to it have made the payment of money dependent on chance.

Sec. 33. The Court, in Rumsey vs. Berry, 65 Me. 570, speaking of an option deal in wheat, said: "This is what is called a settling of the differences, and as such, is clearly and only a betting upon the price of wheat."

Sec. 34. In Fontenbury vs. State, 47 Ark. 188, the Court said that the phrase, "dealing in futures," had "acquired the signification of mere speculation upon chances" and again that wagering contracts are those in which the parties stipulate that they shall gain or lose upon the happening of an uncertain event in which they have no interest except that arising from the possibility of such a gain or loss.

Sec. 35. In Lyon vs. Culbertson, 83 Ill. 33 (25 Am. Repts. 349), the court spoke of an option deal in wheat as "only gaming on the price of wheat" as a "bet on the price of grain during or at the end of a limited time” and “a gambling on the price of the commodity."

Sec. 36. Cunningham vs. Bank, 71 Ga. 400, was an action on a note, given on account of dealings, commonly called futures, where no intention, on either side, existed to deliver or pay for the commodity. The court said: "If this is not a speculation on chances, a wagering and betting between the parties, then we are unable to understand the transaction. A betting on a game of faro, brag, or poker can not be more hazardous, dangerous or uncertain."

Sec. 37. Eldred vs. Malloy, 2 Col. 320 (25 Am. Rep. 752), illustrates in a forcible way not only the meaning of "chance" in its relation to gaming but also the difference between a legitimate transaction and making the payment of money depend on chance. That case was an action upon a note for $500, which was executed on a wager as to when the Colorado Central railroad would be completed to Golden City, in the Table mountains. The road was completed within the time named in the note. The court thought it had enough to do without solving "questions arising out of idle bets made on dog and cock fights, horse races, the speed of ox trains, the contruction of railroads, the number on a dice or the character of a card that may be turned up" and could "see no difference in principle in the bet that the faro dealer would turn up a jack the next turn and the bet that the railroad will be built to Table mountain in so many days." Here the wager was on an event that was largely subject to the control of one of the parties but it being in a degree uncertain the court held the staking of money on it to be a wager, a bet, and it being such, placed the transaction on the same plane as a bet on the number on a die, or the character of a card that might be turned up. In other words the payment of the $500 was made to depend on the chance, whether the railroad would be completed within the time named or not, and the chance in the case consisted wholly in the fact that the event was not known definitely and certainly to the parties when the note was given.

But suppose that the plaintiff in that case had hired the defendant to complete the railroad to Golden City within a specified time with a provision, that if not so completed, the defendant should pay plaintiff $500, as damages for breach of contract and it had been made to appear that that was a reasonable sum as compensation for the non-fulfillment of the contract within the time specified. In such case there would have been no gaming, no bet, no staking money on chance but there would have been a legitimate agreement to pay $500 as a compensation to the party not in default.

Sec. 38. The cases of Johnson vs. Fall, 6 California Reps. 359 (65 Am. Dec. 518) and Beadles vs. Bless, 27 Ill. Reps. 320 (81 Am. Dec. 231) involved also questions in relation to the completion of railroads. In the California case the contest was in regard to a note, given by the defendant to plaintiff, on a wager to the effect that he would pay the plaintiff five thousand dollars, two years after date, if within that time a certain railroad, in which the defendant was interested, was completed and in the Illinois case the controversy related to an agreement for $100, which was to be paid. at a designated time, provided the ties and rails were laid on a certain railroad by that time. In both cases it was held that, as wagers at common law, unless contrary to public policy or good morals, were not illegal, the makers of the obligations in question were liable thereon, though they grew out of wagering transactions. The question of chance was not discussed but in the Illinois case the court drew a distinction between a wagering contract and an agreement to pay money, dependent on a future contingency, in this language: "This, in form at least, is simply a contract for the payment of money, dependent on a future contingency; and in that aspect, is quite unexceptionable.

"The testimony, however, gives the transaction something of the character of a wager, and shows that a similar agreement was given by the payee to the maker of this agreement, payable upon the opposite contingency. But if viewed in the light of a wager as we understand the common law, the plaintiff has a right to recover upon it."

Sec. 39. In Brua's Appeal, 55 Pa. St. 294, which in volved an option deal, the court denounced, as gambling anything which induces men to risk their money or property without any other hope of return than to get for nothing a given amount from another, no matter by what name it may be called and that it is the same whether the promise be to pay on the color of a card or the fleetness of a horse.

Sec. 40. Kirkpatrick vs. Bonsall, 72 Pa. St. 155, involved a dealing in what is called futures. The court said a

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bargain for an option may be legitimate and for a proper business object and added: "But it is evident such agreement can be prostituted to the worst kind of gambling ventures and therefore its character may be weighed by a jury, *** whether the bargain was a mere scheme to gamble upon the chance of prices. * We must not counfound gambling * with what is commonly termed speculation. Merchants speculate upon the future prices of that in which they deal. Their speculations display thought and forecast but they act upon their conclusions and buy and sell in a bona fide way. But when ventures are made upon the turn of prices alone, with no intent to deal in the article the case is changed. Then the bargain represents not a transfer of property but a mere stake or wager upon its future price."

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Sec. 41. In Pearce vs. Dill, 48 N. E. Rep. 788, it was shown that Pearce was operating a "bucket shop" and was engaged in conducting the business of selling "futures" or "options," without having on hand the products he pretended to sell and it was mutually understood and intended by both parties that the products, claimed to have been sold, were not to be delivered but when the time fixed for the delivery the market value at Chicago of such products should constitute a basis upon which the settlements should be made. As the market price would rise or fall there would be a loss or gain to the purchaser. The Supreme Court of Indiana said: "The deals or transactions were understood to be a speculation solely on chances. Such transactions are of like character and akin to bets made on a game of poker or faro, and are equally as uncertain and hazardous."

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Sec. 42. In McGrew vs. City Produce Exchange, 4 S. W. Rep. 38, the Supreme Court of Tennessee, in passing on an option deal, said: "It is now settled in this state that gaming is not confined to 'playing at any game of hazard or address for money,' etc., in the ordinary sense of these words as used in the Code S-5688; but that it is any agreement between two or more persons to risk money or property on a

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