wrran v. vosnunon. 17
tract has been canceled or surrendered; and that he guaranties to his cus-
tomer theperformance of the contract originally made n his behalf. "
This is a very good statement of what the testimony in the case at bar
shows transpired between the parties, in thetransactions here in ques-
tion; and Judge GRESHAM held that the customs referred to were founded
in commercial convenience, and that they wereinot in contravention of
the law, but valid. A -
The supreme court of the United States in its review of the case in 110
U. ST 499, 4 Sup. Ct. Rep. 160, although it reversed the judgment of
thecourt below upon another point, did not question the correctness of
Judge G1msHAM’s ruling upon the validity of the methods of business
referred ‘to;*,by which differences ·were`adjusted. at \ ,
  I- inustihold, therefore, that, for want of adequate proof of an actual _
intentionon the part' ofjboth the defendant and the parties with whom
the *plaintiH' as his agentdealt, not to make realj sales and purchases; or
not to·ina’ke’actual deliveries of property sold and"·purc_hased, the con-
`tenfionthat the contracts were mere gambling transactions is? not estab-
lished. ~ * i A  
It has, however, been a further question with the court whether, upon
another point, the case was` within the ruling of the supreme court of the
United States in William v. Irwin, wherein it was held that the defendant .
was not liable to his brokersfor moneys paid insettlement of differences,
V because it was not shown that the methods of settlement by means of
which differences {were arrived at were not known tohim, and therefore
the settlements were not 'made with his assent. The plaintiffs in that
case were commission merchants and grain brokers ,in· Baltimore, and
the defendant and his deceased partner wereengaged in business in In-
diana} The contracts of sale were made and settled by the plaintiffs on
account of their customers according to the custom of the grain and Hour l
_ exchange in Baltimore, of which they were members, and there was no
proof whatever that the `defendants_,, living thus remote from the scene of
operations, had any knowledge of the customsof the exchange. The
court below decided that the defendants, havingemployed the plaintiffs
as grain commission merchants, to engage in transactions for them on
the exchange, were bound by the general usages and customs of business
there prevailing, whether they had knowledgeof them or not. i This
ruling was held by the supreme court to have been error, not on the
ground that the customs tended in any way to show that the transactions
were wagers, but because they worked a material change in the prin-
cipalfs rights, and the obligations of third parties to him, and therefore
could not be binding upon him without his assent.
The evidence in the case at bar shows that the defendant Vosburgh ‘
musthave been familiar with the methods and usages of business on the
Chicago Board of Trade at the time when the transactions between him
·and·’the plaintiff occurred. He lived not very remete from Chicago;
  wasfrequently in that city; and had for a considerable timebeen accus-
tornedrto transact business on the board of trade through brokers whom
he em ployed. He sold butter and cheese on the board of trade at Elgin,
v.311r.no.1——-2