j WARD ·v, vosnuncn. 13 -
where in fact no purchase or sale of property is intended, but simply
a wager on the rise or fall of prices, the transaction is a gambling one,
and cannot be upheld. It is also equally true and well settled by au-
thorities, so familiar that they need not here becited, that where the
gambling intent exists onlyon one side, and the other party intends an
actual purchase or sale, then the transaction is valid. The diiliculty
always is in applying these principles of law to the facts as they are de-
veloped in .the given case. `It has been of late repeatedly decided, that,
if the parties intend in fact to buy or sell property to be delivered at a
future time agreed upon by them, it is not a gambling transaction, al-
though they exercise the option of settling the difference in price, rather
than make,delivery of the property.   -
Upon a careful perusal ofthe opinion of the court in Barnard v. Back-
haus, 52 Wis. 593, GN. W. Rep. 252, and 9 N. W. Rep. 595, andof
the recordand testimony in that case submitted by counsel for the de-
fendant, I am strongly inclined to the opinion that if V the case in judg-
`ment involved a Wisconsin transaction, arising under the Wisconsin
`Qstatute, thatfopinion mightbe considered a controlling authority in favor
of the defendant here. The rdlelaid down in that case was that, to up-
hold acontract for a sale and delivery of grain at "a future date, for a
price certain, it must aflirmatively and satisfactorily appear that the con-
tract was made with an actual view to the-deliveryand receipt of grain,
not as an evasion of the statute against gaming, or as a cover for ax gam-
bling transaction. The meaning of this proposition would seem torbe
that the burden of proof to uphold such contract is upon the partytwho
seeks to recover upon it. ` A A
It was held by Judge Grmsnam, then district, now circuit judge in
this circuit, in Williar v. Irwin, l1 Biss. 60, that "the burden of show-
'ing that the parties were carrying on a wagering business, and were not
engaged in legitimate trade or speculation, rests upon the defendant.
On their face, these transactions are legal, and the law does not, in the »
absence of proof, presume that parties are gambling, _ A person may
,make a contract for the sale of personal property, for future delivery
· which he has not got. Merchants and traderskoften do this, y, Aeon-
tract for the sale of personal property which the vendor does not own or
possess, but expects to obtain by purchase or otherwise, is binding. if i
an actual transfer of property is contemplated. A transaction which on
its face is legitimate cannot be held void, as ta. wagering contract, by
showing that one party only so understood and meant it to be. The
proof must go further, and show that this understanding was mutual;
that both parties so understood the transaction} If,however, at the
time of entering into a contract for the sale of personal property for
_ future delivery, it be contemplated by both parties that, at the time
jflxed for delivery, the purchaser shall merely receive or pay the differ-
ence between, the contract andthe market. price,»'the transaction is a
wager, and nothing more.", y `
Other cases might be cited in which the same rule is applied to these
contracts for the sale and purchase of, grain as the board of trade as is