OPTIONS" AND sides intended to gamble. Short of the express admission of both parties that it was their intention to gamble, such intention can be proven only by facts and circumstances which tend to show such illegal intention. If the facts and circumstances in evidence are sufficient to show such illegal intention, then the testimony of the party alleging the invalidity of the contract that it was his secret intention to gamble is superfluous. If the facts and circumstances in evidence are not sufficient to show illegal intent on both sides, then the testimony of one party as to his own secret intentions lends no additional weight.' 1In Rumsey v. Berry (1876), 65 Me. 570, the supreme court of that state, in passing upon the evidence, said: "The testimony, so far as reported, reveals nothing inconsistent with an ordinary sale of an article to be delivered in the future. While it may indeed appear a little singular and even suspicious that a man residing in Bangor, having no wheat of his own, should undertake to sell and deliver wheat in Chicago, still we cannot assume that any one has violated the law and has been guilty of immoral and corrupting practices in his business transactions, without proof, even though he may ask it himself, for the purpose of being relieved from the obligation of a losing contract. "Besides, we utterly fail to discover any wrong on the part of the plaintiffs. Their business was a legitimate one, and, so far as appears, their connection with this transaction honest. Their profits were not to be affected by the result, their commissions were not to be increased or diminished by any contingency. It is true they were aware that the defendant at the time had no wheat. But the fact itself being immaterial, their knowledge of it is equally so. It is not only common, but perfectly legal and sometimes necessary, to contract for the sale and future delivery of an article which at the time has no existence, but which is after wards to be purchased, raised or manufactured. "It does not appear that the defendant had any intention beyond what appears upon the face of the contract, or, if he had, that the plaintiffs were cognizant of it. The mischief and illegality arises when the apparent contract is not the real one; when it is a mere cover for ulterior designs and such as are not authorized by law. A contract for the sale and purchase of wheat to be delivered in good faith at a future time is one thing, and is not inconsistent with the law. But such a contract entered into without an intention of having any wheat pass from one party to the other, but with an understanding that at the appointed time the purchaser is merely to receive or pay the difference between the contract and the market price, is another thing, and such as the law will not sustain. This is what is called a settling of the differences, and as such is clearly and only a betting upon the price of wheat, against public policy, and not only void, but deserving of the severest censure." See also Cothran v. Eilis et al. (1888), 125 Ill. 496, 16 N. E. R. 646: Barnard v. Backhaus (1881), 52 Wis. 593, 9 N. W. R. 595; Pope v. Hanke (1894), 155 Ill. 617, 621, 40 N. E. R. 839; Jamison v. Wallace (1897), 167 Ill. 388, 395, 47 N. E. R. 762. The inten The jury § 166. The question of intent is for the jury. tion of the parties is a question for the jury, to be determined from a consideration of all the evidence in the case. may consider the manner and method of carrying on the business; the situation and circumstances in life of the party selling; the pecuniary ability of the party making the purchase; the fact that the products or articles dealt in are never called for by the parties to the transactions; that only margins are required; that the transactions are far in excess of the resources of the parties, and so on, in so far as notice of these various conditions is brought home to the adverse party, together with all the circumstances and evidence in the case.1 1 Pope v. Hanke, supra; Irwin v. Williar, supra; Gregory v. Wendell, supra; North v. Phillips, 89 Pa. St. 250; Ruchisky v. De Haven, 97 id. 202; Beveridge v. Hewitt, 8 Ill. App. 467; Griswold v. Gregg, 24 id. 384; Carroll v. Holmes, id. 453; Kennedy v. Stout, 26 id. 133; Miles v. Andrews, 40 id. 155; Pearce v. Foote, 113 Ill. 228; Cothran v. Ellis, supra; Brand v. Henderson, supra; Tenney v. Foote, 95 Ill 99; Jamison v. Wallace, supra. PART III. COMBINATIONS AND CONSPIRACIES. CH. 5. COMBINATIONS AND CONSPIRACIES DEFINED. 6. LEGAL COMBINATIONS. 7. CASES SUSTAINING COMBINATIONS. 8. SOME GENERAL CONCLUSIONS FROM CASES SUSTAINING COMBINATIONS. 9. ILLEGAL COMBINATIONS. CHAPTER 5. COMBINATIONS AND CONSPIRACIES DEFINED. § 167. A combination defined. 168. A legal combination defined. 169. An illegal combination defined. 170. Law of illegal combinations a part of the law governing con spiracies. 171. Conspiracy defined. 172. Civil and criminal conspiracies. 173, 174. Legal combinations. 175, 176. The object of every combination. 177. The magnitude of a combination as bearing upon its character. 178-180. Almost infinite variety of legal combinations. 181. A small combination may be as obnoxious to the law as a large one. § 167. A combination defined.— A combination is simply the co-operation of two or more persons to achieve a given result. § 168. A legal combination defined. A legal combination is the co-operation of two or more persons to do that which is contrary to neither law nor public policy. § 169. An illegal combination defined. An illegal combination is the co-operation of two or more persons to do something which is contrary to law or public policy.1 1 A combination is a conspiracy in the public, or oppress individuals, by law whenever the act to be done has a necessary tendency to prejudice unjustly subjecting them to the power of confederates, and giving § 170. The law concerning illegal combinations is a part of the law governing conspiracies. It is not conceivable that a combination of two or more persons can be in and of itself illegal unless it amounts to a civil or criminal conspiracy. In fact "conspiracy" is the term which embraces illegal combinations. Combination is the generic term of which conspiracy is the illegal species. The phrase "illegal combinations" is used so commonly in decisions affecting combinations that it is necessary to retain it as a component part of the literature of the subject; but an illegal combination must amount to either a civil or a criminal conspiracy, else the combination is not illegal. § 171. Conspiracy defined.— Conspiracy is the combination of two or more persons to do (a) something that is unlawful, oppressive or immoral; or (b) something that is not unlawful, oppressive or immoral by unlawful, oppressive or immoral means; (c) something that is unlawful, oppressive or immoral by unlawful, oppressive or immoral means. The broad definition of conspiracy is made necessary in view of numerous decisions wherein combinations have been held illegal, neither the object nor the means of which were contrary to law, but were simply oppressive.1 effect to the purpose of the latter, whether of extortion or mischief. Wharton, Am. Crim. Law, 2322. 13 Chitty's Crim. Law, 1139 (1841): "There are, perhaps, few things left so doubtful in the criminal law as the point at which a combination of several persons in a common object becomes illegal. Certain it is that there are many cases in which the act itself would not be cognizable by law if done by a single person, which becomes the subject of indictment when effected by several with joint design." It is sufficient if the end proposed or the means to be employed are, by reason of the power of combination, particularly dangerous to the public interests or injurious to some individual, although not criminal. Colt, J., in Com. v. Waterman, 122 Mass. 43. 3 Chitty's Crim. Law, 1139: "In a word, all confederacies wrongfully to prejudice another are misdemeanors at common law, whether the intention is to injure his property, his person, or his character. But the object of conspiracy is not confined to an immediate wrong to particular individuals; it may be to injure public trade, to affect public health, to violate public policy, to insult public justice, or to do any act in itself illegal." Parsons, C. J., in Com. v. Judd, 2 Mass. 329, 3 Am. Dec. 54, said: "The gist of a conspiracy is the unlawful confederacy to do an unlawful act, or even a lawful act for unlawful purposes; that the offense is complete when the confederacy is made; and any act done in pursuance of it is no constituent part of the offense, § 172. Civil and criminal conspiracies.- The distinction between civil and criminal conspiracies and the law governing the same will be fully discussed in a subsequent chapter. But in both civil and criminal conspiracies the combination is the gist of the offense. § 173. Legal combinations. The law recognizes the economic truth that the co-operation of individuals is essential to the well being and the progress of society. It has been forcibly said: "Associations are so common an element, not only to commerce, but in all the affairs of life, that it would be rather perilous to assert that they impair competition, destroy emulation and diminish exertion. There is scarcely an occupation in life, scarcely a branch of trade, from the very largest to the smallest, that does not feel the exciting and invigorating influence of this wonderful instrumentality. It made and conducts our government, constructs our railroads, our steam vessels, our magnificent ships, our temples of worship, structures for public and private use, our manufactories, creates our institutions for learning, builds up our cities and towns. Its very office is to do what individual exertion may not accomplish, and in a degree distinguishes civilized from savage life. Why, then, should this important agency be denied to this meritorious class of citizens? They are in general men of small means, to whom an association may not only be desirable, but necessary and indispensable." 1 § 174. The law encourages and provides for the formation of 1. Partnerships. 2. Corporations. And the law permits and often directly authorizes the 3. Consolidation of partnerships. 4. Consolidation of corporations. § 175. Every partnership and every corporation is a combination of individuals co-operating together towards a given end, but merely an aggravation of it. This rule of the common law is to prevent unlawful combinations. A solitary offender may be easily detected and punished; but combinations against law are always dangerous to the public peace and to private security. To guard against the union of numbers to effect an unlawful design is not easy, and to detect and punish them is often difficult. The unlawful confederacy is therefore punished to prevent the doing of any act in execution of it." 1 Jones v. Fell, 5 Fla. 510; Andrews' American Law, pp. 562, 563. |