In the absence of a request to direct a verdict, this court must
assume, when only a part of the evidence is before it, that there
was sufficient evidence to warrant the trial court to submit the
consideration of the facts to the jury.
It being shown that the transactions in dispute were to be
conducted under the rules and regulations of the Board of Trade at
Chicago, and that those rules and regulations were explained to the
defendant below, they became competent evidence.
When the defendant, at the close of plaintiff's evidence,
requests an instruction to the jury to charge in his favor, which
is refused, and he then introduces testimony, an exception to that
refusal is waived.
Some statements by the court of the evidence are held not to be
substantial error.
This Court cannot pass upon a refusal of a motion to instruct
generally in defendant's favor when the record contains only a part
of the evidence.
Under a contract which, though its validity was disputed, is
found to have been valid, the defendant below had sundry
transactions in buying and selling grain with the plaintiffs below,
between early in August, 1888, and April 26, 1889, through which he
had become largely indebted to them. On or about the latter date,
the plaintiffs asked of the defendant authority to transfer the May
wheat to June wheat, to which no answer was given. Nevertheless
they sold the May wheat at a loss and
Page 161 U. S. 398
made purchases of June wheat on his account, and informed him of
both transactions. On June 3, all open contracts were closed at a
loss, and, the defendant having refused payment, this action was
begun. There was no controversy as to the correctness of any of the
items except those relating to the June purchase.
Held
that the unauthorized voluntary act of the plaintiffs could not be
said as matter of law to have been ratified by defendant by his
mere retention, without complaint, of an account and statement
rendered to him "that said change had been made," or, in other
words, that plaintiffs had made a new purchase for his account.
As the rest of the judgment below is valid, the court decides
that if the defendants in error will within a reasonable time
during the present term of this court file in the Circuit Court of
the United States for the District of Minnesota a remittitur of the
invalid excess, and produce and file a certified copy thereof in
this court, the judgment, less the amount so remitted, will be
affirmed; but if this is not done, the judgment will be reversed,
and in either event the costs must be paid by defendants in
error.
The action below was instituted by defendants in error to
recover from plaintiff in error the amount of payments alleged to
have been made for account of defendant between the 24th day of
August, 1888, and the 8th day of June, 1889, and resulting from the
purchase and sale of certain grain, made for account of the
defendant, in the City of Chicago, and also the value of services
rendered in connection therewith.
Defendant pleaded that the plaintiffs did not purchase or sell
any grain for his account, but that the transactions in question
were mere wagering contracts, intended by both as gambling upon the
price of wheat, and that the moneys expended by the plaintiffs on
account of the matters sued for were advanced at the City of
Chicago in paying for wheat options and "futures;" that the
services alleged to have been rendered were performed in connection
with such illegal transactions, which, it was averred, were in
violation of the statutes of the State of Illinois.
Plaintiffs filed a reply to the answer of defendant, denying
that it was the understanding and agreement of the parties that
there were to be no actual sales or delivery of wheat, and that
settlements were to be made by one party paying to the other the
difference in values between the contract price and the market
price of the wheat bought, according to fluctuations
Page 161 U. S. 399
in the market, and also denied generally all the allegations in
the answer to the effect that the transactions were gambling
contracts and in violation of law.
The cause was tried by a jury, and the following facts are shown
by so much of the evidence as is contained in the bill of
exceptions:
On and prior to August 24, 1888, plaintiffs were partners in
business at Chicago under the firm name of James E. Boyd &
Bro., and were members of, and commission merchants doing business
on, the Board of Trade in that city. They had a branch office at
Minneapolis, Minnesota, at which Charles E. Handy was their agent
from January 1, 1887, to February 1, 1889, Handy being succeeded on
the latter date by George M. Brush. Prior and subsequently to 1888,
Theodore Hansen resided at Benson, Minnesota, a town on the Great
Northern Railway, about one hundred twenty miles west of
Minneapolis, being engaged there in the business of general
merchandise and grain, owning and operating a grain elevator and
warehouse. Prior to the transactions between Boyd & Bro.
hereinafter mentioned, Hansen had sold wheat through brokers on the
Board of Trade at Chicago and the Chamber of Commerce at
Minneapolis, and had had some "option deals," as he expressed it,
and was generally familiar with the manner in which business was
done on those boards.
Early in August, 1888, as a result of a conversation had with
Boyd & Bro.'s Minneapolis agent a few days previously, Hansen
called at Handy's office and gave him an order for the purchase of
5,000 bushels of December wheat. Defendant claimed that in the
prior conversation Handy had alluded to losses which Hansen had
sustained in "some trades" about a year prior thereto, and said "he
thought it was a good chance to make something back this fall by
making some scalps." Hansen further testified that he supposed the
transactions were to be conducted for him on the Board of Trade at
Chicago by Boyd & Bro., but claimed that at none of the
interviews between himself and Handy was any allusion made to the
Board of Trade or the rules of the Board of Trade. He also
testified that it was not his intention to buy or sell any
Page 161 U. S. 400
grain on any of the orders given to Handy, but that he
contemplated mere speculations on margins. Handy, however,
testified that when the first order was given, he told Hansen that
the commission would be one-eighth of a cent per bushel; that he
would have to abide by the rules of the Chicago Board of Trade, and
stated that he informed Mr. Hansen what those rules were as
concerned the handling of grain on that board, and also informed
him that a delivery was contemplated in every trade, either by
buyer or seller, which was understood by Hansen; that in case wheat
was delivered, he must take care of it, and pay the purchase price
and interest on the money, etc.
The first order to purchase was given August 10, 1888, and from
that time until about April, 1889, occasional orders to buy and
sell wheat were given. In none of the transactions was wheat
offered or furnished by Hansen, or to him personally, but the
purchases and sales were all made on the Chicago Board of Trade,
according to the rules of that board. Hansen became delinquent in
the furnishing of margins on his contract. On April 16, 1889,
40,000 bushels of May wheat were bought on his account at prices
ranging from 109 1/2 to 111 1/4. On April 26th and 29th following,
by telegrams, and about those dates, by personal solicitation of
Handy, Boyd & Bro. requested authority to "transfer," as they
expressed it, the May wheat to June wheat. Hansen did not answer
the telegrams, and gave no satisfactory response to the verbal
inquiry. On April 29th, however, Boyd & Bro. sold the 40,000
bushels of May wheat, on which Hansen was then in default for
margins at 81 1/2, and the loss of $11,500 was charged against
Hansen in his account on the books of Boyd & Bro. The firm then
bought 40,000 bushels of June wheat at 82 1/4, and sent a
memorandum notice of the sale of the May wheat and the purchase of
the June wheat to Hansen, together with an account of the loss
sustained on the May wheat. On May 4, 1889, Boyd's agent, Brush,
wrote Hansen that Boyd & Bro. demanded an immediate settlement
of his account. Personal interviews with Brush and correspondence
with Boyd & Bro. followed. On June 8, 1889, the then open
contracts on the books of Boyd &
Page 161 U. S. 401
Bro. with Hansen were closed, and the 40,000 bushels of June
delivery wheat above referred to were sold on the Board of Trade,
and the loss -- $1,300 and $50 commission on the transaction -- was
charged against Hansen. A day or two following, an account
exhibiting the total indebtedness of Hansen to Boyd & Bro.
($18,248.36) was delivered to Hansen, and payment thereof demanded,
which was refused, and the next day this action was brought. There
was no controversy at the trial as to the correctness of any of the
items of the account other than as to the legality or illegality of
the transactions, with the exception of the loss resulting from the
40,000 bushels of June wheat, asserted by Boyd & Bro. to have
been purchased by authority of Hansen, but which Hansen claimed he
had never authorized, and hence should not be held liable for the
loss thereon, nor for the commission charged.
As to all the items of the account, plaintiffs contended that
the transactions were legitimate purchases and sales of wheat under
the rules of the Chicago Board of Trade; that deliveries were
intended by the parties to the contracts on the Board of Trade;
that Boyd & Bro. and Hansen understood that actual purchases
and deliveries of wheat were intended. On the other hand, Hansen
claimed that no actual purchases or sales of wheat were agreed to
be made or were intended, and that the orders given by him were
mere wagers upon the prices of wheat -- deals in futures upon the
rise and fall in prices of wheat according to the quotations on the
Chicago Board of Trade.
The court instructed the jury very fully as to the law of the
case upon the differing contentions of the parties, and the
defendant took seven exceptions to the charge of the court. But one
instruction was asked on behalf of defendant, and that was given to
the jury. It was as follows:
"If you should believe that it was the intention of both parties
to this contract that no actual wheat was sold or delivered or
intended to be delivered at a future time, and if you should find
from the evidence that it was not the intention of either party
that a contract should be made by plaintiffs to buy and hold wheat
for delivery to the defendant, but
Page 161 U. S. 402
that it was the real intention and the understanding of the
parties that a contract should be made which should be closed at a
future date, not by the delivery of the wheat and the payment of
the purchase price, but by the payment of money to one party or the
other, the parties to receive the same and the amount to be paid to
be determined upon a basis of the difference between the agreed
purchase price at the time the purchases were made and the actual
market value of the wheat on the day when the contracts were
closed, then the jury are instructed that such contracts are
illegal in law, and void, and you will find for the defendant."
A verdict was returned for the full amount claimed by
plaintiffs. Judgment was entered thereon, and the court overruled a
motion for a new trial. The case was then brought to this Court by
writ of error.
MR. JUSTICE WHITE, after stating the facts in the foregoing
language, delivered the opinion of the Court.
The assignments of error set out in the record are fifteen in
number. The first five are not pressed in the argument for
plaintiff in error, and we only briefly notice them.
In No. 1 it was assigned as error that the evidence conclusively
showed that the transactions upon which the plaintiffs below
claimed a right to recover were wagering and gambling contracts,
and that the court erred in not so holding and the jury in not so
finding.
This assignment is, of course, without merit, since it asks us
to determine the weight of proof, and thus usurp the province of
the jury. There was no motion made at the close of the evidence to
direct a verdict, and both parties therefore agreed to the
submission of the issues of fact to the consideration of the jury.
In the absence of such a request, we must assume that there was
sufficient evidence to warrant the court in permitting the jury to
draw the inferences proper to be deduced
Page 161 U. S. 403
from the evidence in the case. Moreover, the bill of exceptions
filed in the record does not purport to contain all the
evidence.
The second, third, fourth, and fifth assignments of error cover
exceptions to the admission in evidence of the rules of the Board
of Trade at Chicago, the rules of the clearinghouse of that board,
and the admission in evidence of certain testimony given by James
E. Boyd, one of the plaintiffs, explanatory of the clearinghouse
rules, and of the manner in which the payments of losses and
profits accruing under the various transactions involved in this
action were made by the clearinghouse of the Chicago Board of
Trade. Evidence had been introduced on behalf of plaintiffs that
the agreement with Hansen was that the transactions were to be
conducted under the rules of the Board of Trade at Chicago, and
that such rules were explained to him. The rules and regulations in
question were therefore competent evidence.
Bibb v. Allen,
149 U. S. 481,
149 U. S.
489-490. The oral testimony of Boyd tended to explain
the purport of those rules and the transactions thereunder, and was
consequently relevant.
The sixth assignment relates to the overruling of a motion, made
at the close of the evidence for plaintiffs, that the court
instruct a verdict for the defendant, and assignments seven to
fifteen, inclusive, attack portions of the charge to the jury. As
to the alleged error in refusing to instruct a verdict at the close
of the evidence for plaintiffs, it is sufficient to say that it has
been repeatedly held by this Court that when, after such a motion,
the defendant introduces testimony, as was done in the case at bar,
an exception to the action of the court in refusing to direct a
verdict is waived.
Runkle v. Burnham, 153 U.
S. 216.
Assignment seven asserts that the court erred in giving the
following instruction:
"The time during which these transactions occurred commenced in
August, 1888, and were concluded, and the whole transaction finally
closed up, in June, 1889. The plaintiffs claim that the defendant
applied to the Minneapolis office to employ them to sell and
purchase wheat for future delivery,
Page 161 U. S. 404
that he inquired of the manager the commission to be charged,
and was informed of the rate, and also told by the manager in
charge that it was a good time to make some scalps, but what that
term means has not been developed by the testimony."
The exception taken to this portion of the charge was that the
defendant in his testimony, had
"stated and developed the meaning of the word 'scalp,' and that
the charge excepted to was a denial of actual material testimony
introduced on the part of the defendant, and material to his
defense."
In his brief, counsel for plaintiff in error asserts that the
charge misled the jury, and, in effect, withdrew the evidence on
the subject from the jury, and wholly annulled its force.
Concerning this alleged error, the trial judge, in his opinion
denying the motion for a new trial, said:
"It is urged that the jury were misled by a statement in the
charge that the word 'scalps,' used by the agent of the defendant
before the defendant authorized him to enter into any contracts for
the purchase or sale of wheat, misled the jury."
"Hansen, the defendant, testified in substance that in the
latter part of July, 1888, the manager of the plaintiff at
Minneapolis was introduced to him by Mr. George Shepherd, who said:
'I used to have a few deals in options, and when I was trading with
him, I had never made a loss,' and that the next day after the
introduction, the manager spoke to him in the Chamber of Commerce
Building in Minneapolis, and said that"
"he knew I had some trades a year ago, and they had roasted me
pretty hard then, but he thought it was a good chance to make
something back this fall by making some scalps."
On cross-examination, witness, on being asked, "What do you mean
by the word
scalps?,'" said the word was used on exchange
frequently when they mean "taking a short time; buy and sell as
quick as you see a profit, and when you have a loss, close it out
at any amount; . . . a scalp means a short deal."
"The meaning of the word is not fully disclosed by this
testimony, nor is it revealed by the answer to a question of
Page 161 U. S. 405
the court, when the witness in substance said that an example of
a 'scalp' was when a dealer, having previously bought wheat to be
delivered in May, sold the same quantity to be delivered the same
month and settled his deals before May."
In view of the evidence contained in the record and referred to
in the opinion of the trial judge, there was no substantial error
committed in the portion of the charge now under review. The
language of the court could not reasonably be understood by the
jury as meaning more than that the court was of opinion that the
precise meaning of the term in question had not been clearly shown
by the evidence. The observations, however, of the court were mere
comment upon the evidence, and were evidently not intended, and we
do not think could have operated, to prevent the jury giving such
weight as they saw fit to the explanatory testimony on the
subject.
Assignments eight, ten, eleven, and twelve may be considered
together. They allege error in the following portions of the
charge:
"8. It is claimed on the part of the plaintiffs that defendant
was informed of the rate of commission for their services; that the
contracts made for him would be subject to the rules, usages, and
regulations of the Chamber of Commerce of the City of Chicago, and
that in all cases actual wheat must be purchased and sold, and the
margins kept up to protect them against loss."
"10. The plaintiffs' theory is, and evidence has been introduced
tending to sustain it, that they were employed by defendant,
through the Minneapolis office, as brokers and commission
merchants, to purchase or sell wheat, for future delivery on his
account, and that such sales and purchases were to be made on the
Chicago Board of Trade, with the members thereof; that such
contracts were to be governed by the rules and usages of such
Chamber of Commerce, and that in every instance actual delivery of
wheat was intended by the parties to the contracts made for the
defendant's account, and that these contracts were closed and
settled up by the plaintiffs in accordance with these terms, and at
the
Page 161 U. S. 406
defendant's request, and advances were made and their own money
paid out for his benefit."
"11. All optional contracts, however, are not illegal under the
statute which was read to you. If the option is to sell or purchase
at a future time, then it is illegal and a wager; but if the option
consists merely of a delivery within a specified time, the contract
is valid, and what was done by putting up margins amounts to
nothing unless the contract itself is illegal. The validity of an
option contract depends upon the mutual intention of the parties
thereto, and if a sale or purchase of actual wheat for future
delivery is intended, it is valid. If the contract is lawful, the
putting up of margins to cover losses which might accrue from
fluctuations in prices in final settlement of the transactions,
according to the rules and usages of the Board of Trade of the City
of Chicago, is entirely proper and legitimate. These rules have
been read to you by counsel for plaintiffs, and there is nothing in
these rules, on their face, that indicates that they are in
violation of the laws of Illinois or contrary to public
policy."
"12. Courts, however, must recognize from necessity the methods
of carrying on business at the present day, and apply well settled
principles of the common law to enforce contracts unless they are
forbidden by statute or violate some rule of public policy. The
daily mercantile business of the country, mercantile deals -- and
by that I mean the sale and purchase of personal property -- could
not be successfully carried on if merchants and dealers were unable
to sell something which they did not have, but which they intended
to get in the market and buy before the day of delivery. A trader
has a right to sell, to deliver at some future time, that which he
then has not, but which he expects to go into the market and buy,
and the parties may agree mutually that there need not be a present
delivery, but that such delivery may take place at some other time.
Such future delivery contracts, however, must be in good faith;
there must be an intention to make an actual sale and delivery of
the article dealt in."
The sole objection made upon the argument to these several
instructions was, in substance, that under the evidence in the
Page 161 U. S. 407
case, the court was not warranted in assuming, or the jury in
finding, that the transactions between Boyd & Bro. and Hansen
might be valid. Obviously, however, such an objection cannot
prevail in the absence of a motion on behalf of defendant at the
close of the whole evidence for an instruction in his favor. Nor,
if such motion had been made, could we review a ruling upon it in
the condition of the record in this case, as the bill of exceptions
does not purport to contain all the evidence.
Assignment No. 13 covers instructions in which the court
repeated plaintiffs' theory of the transactions, stated the rules
of law governing the question as to when a contract was void as a
wagering or gambling contract, and the facts necessary to be proven
to the satisfaction of the jury before they could properly return a
verdict to that effect. These instructions embraced a half dozen
paragraphs of the charge, one paragraph in particular being very
lengthy, and cover more than a page and a half of the printed
record.
The exception noted to this part of the charge was:
"That there is nothing in the pleadings, evidence, or record in
this action to support or justify the theory of the plaintiffs
stated by the court in this part of its charge here excepted to;
that the portion of said charge here excepted to is prejudicial to
the defendant, and is misleading to the jury, is error in the
charge and error in law on all the evidence and facts in the
case."
The assignment is without merit. As all the evidence is not
shown to be contained in the record, we must assume that there was
evidence in the case tending to support plaintiffs' theory of the
case stated by the court. The exception is, moreover, too general,
uncertain, and indefinite to merit detailed consideration.
Assignment No. 14 asserts that the court erred in giving the
following instruction:
"I might say to you here that if you find from the evidence that
any of these contracts had been offset under the rules and
regulations as prescribed by the Board of Trade of Chicago --
offsets between persons and dealers connected with that board
through whom these plaintiffs operated -- that is
Page 161 U. S. 408
not evidence of their illegality. The mode of settlement of
bona fide contracts for the sale of actual wheat does not
affect the validity of the contract if the original intention was
to purchase, receive, take and deliver the actual wheat at the time
specified when the contracts were made."
The exception taken to this instruction was
"that the offsets and modes of settlement stated and referred to
in the part of the charge here excepted to belong to the jury as
proper and competent evidence, to be considered by them in
determining the entire intentions of the plaintiffs in respect
thereto, and as affecting and showing the original intention with
which said contracts were made and were to be executed and closed;
that said charge here excepted to characterizes said evidence as no
evidence, and virtually takes the same from the jury; that said
charge here excepted to is prejudicial to the defendant, is
misleading to the jury, and is otherwise error in law."
We are referred by counsel for plaintiff in error, in his brief,
to the language of the exception, as his argument upon this
assignment.
The court had informed the jury what was the theory of
plaintiffs upon which they claimed a right to recover. (See tenth
assignment of error,
supra.) Pursuant to their theory,
plaintiffs contended that the purchases and sales of wheat on
account of the defendant were to be made on the Chicago Board of
Trade with the members thereof, and the contracts of defendant were
to be governed by the rules and usages of such board, and that in
every instance an actual delivery of wheat was intended. The
contracts referred to in the criticized instruction were the
contracts claimed to have been entered into by plaintiffs on
account of defendant with members of the Board of Trade at Chicago.
Just before giving the instruction, the court had said to the
jury:
"These memoranda which have been offered in evidence, and the
entries on the plaintiffs' books of these contracts are not
conclusive evidence of their character. You are to determine what
these contracts were; you are to determine them from the evidence
in the case; you can look into the
Page 161 U. S. 409
transactions themselves as disclosed by the evidence, and
determine from the facts and circumstances attending their making,
and the conduct of the parties thereto with reference to them --
whether they are illegal within the rule laid down, or whether they
are
bona fide contracts for the purchase and sale of wheat
to be delivered at a future time."
In determining the conduct of the parties to the contracts with
reference thereto, particularly in view of other instructions of
the court, we think it beyond question that the jury must have
understood they were authorized to take into consideration the
modes of offsets and settlements by which the contracts were
cancelled. We do not think the instruction was amenable to the
criticism made on behalf of defendant.
The greater part of the brief of counsel for plaintiff in error
is devoted to argument in support of the contention that upon the
undisputed evidence in the cause a verdict should have been
directed for defendant. Aside from the circumstance to which we
have before called attention, that the bill of exceptions does not
purport to contain all the evidence introduced at the trial, this
contention is fully answered by what we have said above in
disposing of the first assignment of error.
We are of opinion, however, that the instruction covered by the
ninth assignment of error was erroneous. The instruction is as
follows:
"9. Now if you find from the evidence that the plaintiffs, about
April 29, 1889, informed the defendant by letter that the forty
thousand bushels of May wheat in question could be at that time
changed to June wheat, and that the defendant made no answer
thereto, and if you further believe from the evidence that said May
wheat was changed over into June, for and on account of the
defendant, and that the plaintiffs rendered an account, a report,
and statement to defendant that said change had been made, and the
defendant received such report and statement and retained it, and
made no objections to said change of said May wheat to June, then
such facts amount to and were a ratification on the part of
defendant of the acts of the plaintiffs in making such change.
"
Page 161 U. S. 410
The exception taken to this instruction was
"that the evidence in the case did not justify the finding by
the jury that 'said May wheat was changed over into June wheat for
and on behalf of the defendant,' and that the statement and form of
the part of said charge excepted to is prejudicial to the
defendant, and for error in law."
It was not claimed that Boyd & Bro. had a general authority,
by virtue of their dealings with Hansen, to make the so-called
transfer, and, just preceding the instruction quoted, the court had
called the attention of the jury to the fact that there was
conflict in the evidence as to whether or not specific authority
had been given to make it. Hansen was in default for margins on the
purchase of May wheat, the price of the article had fallen very
greatly, and on April 29, 1889, Boyd & Bro. had the right to
close out the contract.
The instruction assumes that Boyd & Bro. and Hansen were so
situated with reference to each other -- as was the fact -- that
power could have been obtained from Hansen to make the purchase of
June wheat if he had wished to give the authority, and that the
authority was asked for and was not given. Under such
circumstances, we are of opinion that the unauthorized voluntary
act of Boyd & Bro. could not be said, as matter of law, to have
been ratified by Hansen by his mere retention, without complaint,
of an account and statement rendered to him "that said change had
been made," or, in other words, that Boyd & Bro. had made a new
purchase for his account.
In
Supervisor v.
Schenck, 5 Wall. 772,
72 U. S. 782,
this Court said:
"Ratification may be by express consent, or by acts and conduct
of the principal inconsistent with any other hypothesis than that
he approved and intended to adopt what had been done in his
name."
The mere retention by Hansen of a report that an unauthorized
purchase of 40,000 bushels of wheat had been made on his account
was entirely consistent with the hypothesis that he did not
approve, and did not intend to adopt, what he had previously
declined to authorize. The mere silence of Hansen was certainly not
necessarily indicative of an intention to adopt the unauthorized
act of Boyd &
Page 161 U. S. 411
Bro., and it was therefore insufficient of itself to warrant an
instruction that it constituted in law an adoption of such act. The
question of whether the evidence established ratification should
have been submitted to the jury.
The fifteenth assignment of error covers an instruction to the
jury that if facts and circumstances introduced in evidence by the
plaintiffs which tended to show that the order for the transfer of
May wheat to June wheat was given in connection with a number of
other recited facts which were found by the jury to exist, they
would constitute a ratification. In view of our holding with
reference to assignment No. 9, it will be unnecessary to review
this last assignment.
We find, therefore, that there is error in the record solely
with reference to the instruction contained in the ninth assignment
of error -- that if certain facts were found by the jury, the
defendant should be held to have ratified the purchase on April 29,
1888, of 40,000 bushels of wheat for June delivery. The question
arises as to the proper judgment to be entered. The plaintiffs
below recovered judgment for the full amount of their claim. The
June wheat purchase and sale were distinct and separable from the
other transactions upon which a recovery was had. The amount of
loss arising from the purchase and sale of this wheat, including
the commission charged by Boyd & Bro., is clearly ascertainable
from the evidence contained in the record, while the interest
thereon embraced in the judgment is matter of simple calculation.
The rule has been adopted by this Court that it is proper either
for the trial court upon an application for a new trial or for an
appellate court in reviewing a judgment, to permit the party in
whose favor a verdict or judgment has been returned or entered to
avoid the granting of a new trial on account of error affecting
only a part thereof by entering a remittitur as to such erroneous
part when the court can clearly distinguish and separate the same.
Koenigsberger v. Richmond Silver Mining Co., 158 U. S.
41, and cases cited, p.
158 U. S. 53;
Phillips & Colby Construction Co. v. Seymour,
91 U. S. 646,
91 U. S. 656.
Following the practice pursued in the last cited case, and also
in
Washington & Georgetown
Railroad Company Co. v.
Page 161 U. S. 412
Harmon, 147 U. S. 571,
147 U. S. 590,
we will not reverse the judgment below if the defendants in error
will remit the excess therein in the particulars heretofore
indicated -- that is, the loss on the purchase and sale of the June
wheat ($1,300), the commission charged in that transaction ($50),
and interest on those items from June 8, 1889, to the date of the
verdict.
Ordered that if the defendants in error will within a
reasonable time during the present term of this Court file in the
Circuit Court of the United States for the District of Minnesota a
remittitur of such excess, and produce and file a certified copy
thereof in this Court, the judgment, less the amount so remitted,
will be affirmed; but if this is not done, the judgment will be
reversed. In either event, the costs must be paid by defendant in
error.
MR. JUSTICE BREWER, not having heard the argument, took no part
in the decision of this cause.
