- 14 rmnnnar. nnronrsn.
applied to every other contract, namely, that presumptively they are
_ legal and valid; and'that the burden is not, in the lirst instance, upon
the plaintiff to show that the contractwas not an- evasion of the statute,
{or a cover for a gambling transaction. ‘ The supreme court of the United
States in Irwin v. Williar, 110 ·U. S. 507, 508, 4 Sup. Ct. Rep. 160, ex-
pressly approve the stateme11_t°0f`thé law on this point, as it has just
been quoted from the opinion of Judge Gans21AM; and I must therefore
hold that the burden here is not upon the plaintiff to make it satisfac— ·
tori1y and aflirmatively appear that the contracts in question were legal,
but that it is incumbent upon the defendant to show thatthe contracts
were in fact gambling transactions; and this is not shown- bymerely
proving his own intention in the transaction.` As was well said in Clarke
v. Foss, 7 Biss. 548:i V A ` ,‘“ ’
"It is very easy for either party toswear to what his own understanding of
the contract was, but that, 'standing alone, is manifestly immaterial. The
secret intentions of one party,·contrary to what appears on the face of thee0n-
_ .tract, and not communicated to the other party, cannot prevail to make a cou-
tract illegal which is otherwise valid. The real question is, what was the
contract? and that implies an,,inquir%as to the mutual understanding and
meeting of the minds of the parties. ‘ · hat was that? It is easy for a party
to swear what his own understanding and intentions ·‘were; but, when he
comes to swear to the intentions and understanding of the other party, the
consideration due to his testimony stands on an entirely dilferent footing. He
may be presumed to know hi  ownintentions, but theevidence of the inten-
A tions of the other party should not he of a merely subjective character, but
should consist of tangible facts and circumstances, outside of his own conscious-
ness, and a knowledge of which would be capable of satisfying other minds."
* In;Bangs v. Hornick, 30 Fed. Rep. 97, Judge BREWER in his opinion
says: , _, r . V
— "Counse1 for defendant say that it is the absolute duty of the court to
denounce this; transaction. unless it clearly appears that itwas a valid and
honest one. I think the duty of the court is precisely the reverse, and that it
is the duty of the court to uphold it, unless it appears thatlt was an invalid
and dishonest one." · { · P - ~ A
This is a_ terseand accurate statement of the rule of law applicable
to the present.case.’ The plaintiff was a broker or agent of the defend- `
tant in the transactions in question; '`i‘` ‘ He was the middle-man between
the defendant and other parties, to whom sales and from whom pur-
_ chases of coimmodities were n1ade.’p’ Like the case of Bangs v. Hornick,
_ just cited, as there observed by’Jud_ge Bamwnn, it is not a case where
the defendant, asprincipalion theone side, was/dealing with the plain-
_ tiff asprincipal on the other. There was no contract of purchase or
sale, real or pretended, between them. He was merelya broker,——an
Aagent to do the defendanlfs bidding in transactions real or pretended.
"There is no presumption that an agent does not obey the instructions
given, or that he does not intend toobey them; and, it matters not what
` the intent"or` supposition ofthe prineipal may be, the law will presume
that the, agent obeyed the instructionsthat weregiven, and as they were
iv given; and, if the contrary beiallegedy it must betproved.?
T ` `Now, although the defendant’rnay“not have intendedany real pur-