` _WARD o. vosnunerr. 15
. chase or sale of grain or other commodities, it is not satisfactorily proven
y that the parties with whom the plaintitfdealt for the defendant, did not
contemplate the actual receipt lof property,. purchased, and delivery of
property sold. Just here is the ditliculty with the defendant’s case, The
proofs do not come up to,the point of showing that both or all the parties
to the various transactions, regarded them simply as wagers on differences
in prices. As we have seen, the test of illegality is the intention, not
alone of one of the parties, but of both or all.
As before, observed, these were transactions arising in Illinois, and
‘ therefore governed by the Illinois statute. The Wisconsin statute is
broader in its scope. , Indeed, as pointed out by Judge Horxms in Rc
.. Green, ,7,Biss. 338, the statute of this _state on the subject of gaming has
`gone further than the `English statutes on thesutject. Chrrke v. Foss,
usupm; ,.G'ilbcrt v, Gaugar, 8 ~Biss. 214; and Jackson v. Foote, 11 Biss. 223,
_12,Fed. Rep._37,—1all, decided in this circuit,-were cases involving
transactions under,   Illinoisstatutes. Clarke v. Foss, in Amanyof its
prominent features, is on all fours with the case at bar, involving also
the validity ,of,settlements, made bythe so-called f‘ ringing up?’- process,
‘ and the contracts outpf which that tease arose, were sustained. In that
_ case, as injthis, theevidencershowed that in some of the transactions,
grain was actually delivered and paid for, and in other respects, thecase
,was_very similar to that herein hand. Although notoiiicially, reported,
I happen to know that aniappeal was taken from the judgxnent.of_Judge
,_BUNN in Olarlce,v,_ Foss, to the circuit court, and that, in an oral opinion
_, delivered from the bench; by Judge Dnummoun, thecontracts there in-
‘ volved, were sustained, andthe decision of the district court. was fully
- afnrmed., .111 Jackson v. Irhote, Judge Bnooonrr decided that an agree-
~ment rbetweena person and hisvbroker on the Chicago Board of Trade,
by which heis todeal irrtime contracts for the=pui*chase and sale of
` graingand settle the dinerencesso as to avoid paying for and carrying
’ the commodities bought, does not show an intention, to deal in Foptions
~ to buy orsell at a future .tirne,?’ such as are prohibited by the Illinois
statute, though the contracts might be wagering contracts at common
law, and that subh statute does not ooverdealing ‘in»·differences.. So in
‘ Gilbertiv. Gcwgar, supmqjthe same judge decided that the Illinois stat—
utc was not intended `toprohibit sales of grain orother commodities for
4 future delivery, where the»,seller reserves to himself a simpleyoption as t
to thetimc cqfdelalverjy within certain limits; and that if one makesza econ-
tract to~deli=ver grain during a future month, at a fixed price`, and·,tby
reason of the adverse aspect of the market, directs his broker to settle
with the purchasers before thematurity of the contract, this does not
;niakeithe,contraet,`void as a. gambling transaction, and he isliable for
, the differences paidby the brokers in his behalf, as well as for their
.—commissi0ns.» . .» 4 ~ t » . V ~
. ’ The weight of authority, therefore, in this circuit, is all one —_way, as
applied to Illinois transactions,·-namely, that asimple option; reserved
·· by the sellerto himself as to time of delivery of property within certain
limits, and the set,tlenient~of differences upon such, a contract, does not