gesting them than to go into the market and [ buy them; but such a contract is only valid when the parties really intend and agree that the goods are to be delivered by the seller and the price to be paid by the buyer; and, if under guise of such a contract, the real intent be merely to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, then the whole transaction constitues nothing more than a wager, and is null and void." The above quotation is taken from the case of Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. 160, 28 L. Ed. 225, and the same is quoted and approved by the United States Supreme Court in Clews v. Jamieson, 182 U. S. 461, 21 Sup. Ct. 845, 45 L. Ed. 1183, 1190. The same rule runs through all the cases, and there can be no doubt but that, in the absence of statu [6] If, therefore, there is any substantial and competent testimony in the record upon which reasonable men might differ as to the intention of the plaintiff and the grain company at the time these contracts were entered into, the case was properly submitted to the jury and its verdict and the judgment entered thereon should stand. In advance of a consideration of the evidence, it should be stated in a general way that in point of time the "cash grain," "hedging," "future," and "option" transactions are mixed and intermingled and the questioned transactions appear from time to time almost from the opening of the account until its close. The case, however, as presented here in both brief and oral argument, assumes that the same general intent runs through all the 99 transactions, the legality of which is questioned. [7] Keeping in mind the foregoing rules of law, we proceed to an examination of portions of the testimony bearing upon the question of the intent of the plaintiff with reference to the "future" and "option" contracts. It is urged by plaintiff that all these contracts were made under and in accord tory regulation, it is the settled law. Cleage v. Laidley et al., 149 Fed. 346, 79 C. C. A. 284; Chicago Board of Trade v. Christie, 198 U. S. 236, 25 Sup. Ct. 637, 49 L. Ed. 1031; Sampson v. Cotton Mills (C. C.) 82 Fed. 833. [2] In order to invalidate a contract as a wagering one, both parties must intendance with the rules of the Chamber of Comthat, instead of delivery of the article, there shall be a mere payment of the difference between the contract price and the market price; that is, a settlement of the differences. Clews v. Jamieson, supra; Bailey v. Phillips (C. C.) 159 Fed. 537. [3] The general rule of law is that contracts for the purchase and sale of grain and so forth, to be delivered in the future, are presumed to be lawful and valid, and that they will be carried out by actual delivery of the property involved, or that they will be settled in some of the ways sanctioned by law. Gettys v. Newburger (C. C. A.) 272 Fed. 209, 216. The burden is upon a party assailing such a transaction on the grounds that it is a wagering contract to show an intention by both parties to settle by a payment of the market differences. Clews v. Jamieson, supra; and all other cases. [4, 5] In its final analysis the problem of determining the validity or invalidity of such a contract resolves itself into the question of the intent of the parties at the time the contract was made. To establish this intent, it is not indispensable that declarations or statements of the parties showing such intention or understanding should be proven. Pratt v. Ashmore, 224 Ill. 587, 79 N. E. 952, 953. Such statements may be overborne from facts and circumstances. Carson et al. v. Milwaukee Produce Co., 133 Wis. 85, 113 N. W. 393-395. It is to be determined from all the facts and circumstances surrounding the transaction: the acts, statements, and declarations of the parties. Gettys v. Newburger, supra. merce of Minneapolis, which fact would raise a presumption of their legality. The three following transactions seem to contradict this contention. January 4, 1916, defendant grain company wired plaintiff : "Buy ten May at market on opening stop loss at two cents under advise by wire to Ravalli in code." This order was executed by plaintiff by purchase of 10M May wheat on January 5 at $1.25, which was sold by plaintiff on January 7, 1916, at $1.23, pursuant to the stop loss order, without any additional instructions from defendant. On March 1, 1916, defendant wired plaintiff: "Wired you this morning buy one May wheat dollar nine or lower additional one May wheat dollar seven open order buy five May wheat at opening stop loss five cents for account of I. L. Deardorf," and on March 8, 1916, defendant wired plaintiff in connection with the same transaction: "Sell stop to close five May dollar ten half Deardorf." This order was executed by plaintiff by purchase on March 2 of 5M May wheat at $1.11, and the sale on March 8 of 5M May wheat at $1.102. At another time defendant wired plaintiff : "Buy one May wheat stop loss five cents account Bates." This order was executed by plaintiff on March 7, 1916, by purchase of 1M bushels May wheat at $1.144, and sale of same quantity on March 13, 1916, at $1.094, without any further instructions from defendant. (205 P.) the clearing house could not deliver to us but today he bought in his short wheat and this now leaves us liable to delivery of the cash wheat." Section 7, rule 4, of the Minneapolis Chamber | short Dec. wheat for another customer so that of Commerce prohibits a member from"making or entering into any trade, contract or transaction in any such commodity [wheat], which such person, firm, corporation or association [member] shall contemplate or intend shall be or may be closed or terminated when the market price of such commodity shall reach a certain figure." And again on December 19, 1916, in referwrote to the grain company: ence to the same transaction, the plaintiff "We saw an opportunity this morning to change over your 1 long Dec. wheat to May at 2¢ difference, which is full market at present. We scalped a 1e on the May end of it, thus getting 14¢ difference." last quoted, seems to have a special meaning The word "scalped," as used in the letter in connection with transactions in "options" or "futures." In McCormick et al. v. Nichols et al., 19 On December 6, 1916, plaintiff sent to the grain company a statement showing the condition of its option trades, disclosing that the Ill. App. 334, 336, a question similar to the grain company was "long" 1,000 bushels of December wheat, to which was attached a memorandum reading as follows: "We would like very much to have this 1 Dee. wheat taken care of for there is a possibility of delivery in case those who now have short Dec. wheat with us should buy it in, which they may do at any time." one here was at issue. A witness had testified that his understanding of the word "scalp" in such connection was "a trade for the day, and sold out that evening or the next day; it is a short trade." Whereupon the following question was asked: "Q. Does that mean or intend the delivery of grain, or a settlement on differences?" and the following answer given: "A. It is a settlement on differences." Another witness, on the same subject, testified: On December 9, 1916, in reply to the foregoing, the grain company wrote to plaintiff, stating they were under the impression that this December wheat had been liquidated "I have been in the grain business 10 or 12 long ago, which letter contains this state-years. As I understand it, a scalp is where we buy in the morning and close it out that night; it is a short deal, a quick sale and a settle ment: . "We have decided not to sell out this Dec. wheat at the present time, and, if forced upon us, you may sell same out for our account, advising us by wire, that is, if this wheat is forced on us before liquidation of hedge." There had been some misunderstanding between plaintiff and the grain company over this transaction on account of the fact that it had been handled partly in the Duluth office of plaintiff and partly in its Minneapolis office, and on December 12, 1916, in reply to the above letter, plaintiff wrote to the grain company in reference to the transaction, the closing paragraph of the letter reading as follows: "We will instruct our Duluth office to trans fer this 1 Dec. wheat, which you are long there into May, if they find it necessary in order to avoid delivery. We make these transfers without definite instructions, as it is very expensive to accept delivery of grain, and it does not pay to take any chances on such trades." December 15, 1916, plaintiff wrote to the grain company: "You are still long one thousand Dec. wheat with us and we may have this delivered to us in cash wheat so we will have to change this over to May in the morning unless we hear from you overnight that you want the Dec. sold out. We have not hurried about changing this over as we have notified you that it should be traded over, and we have happened to have 205 P.-42 ment on differences. what I call a scalp." * A short deal is The court comments on the fact that no attempt was made to show a different understanding of the term "scalp," though several members of the Board of Trade were present and testified. This was held sufficient to send the case to the jury on the question of whether the contract in controversy was a gambling transaction or not. [8] All of the questioned dealings between the parties were "margin" transactions. This fact, standing alone, is not sufficient, under the authorities, to stamp them as wagering contracts. It is true, however, that such fact may be considered, in connection with other competent testimony tending to show an illegal contract, in determining the intention of the parties. Jamieson v. Wallace, 167 Ill. 388, 47 N. E. 762, 59 Am. St. Rep. 302; Sharp v. Stalker, 63 N. J. Eq. Ark. 300, 19 S. W. 921; Sprague v. Warren, 596, 52 Atl. 1120; Phelps v. Holderness, 56 26 Neb. 326, 41 N. W. 1113, 3 A. L. R. 679. Taking into consideration the fact that at least three of the transactions were in violation of the rules of the Minneapolis Chamber of Commerce; that in the correspondence above quoted the plaintiff was endeavoring to avoid acceptance of delivery of wheat, at a time when delivery was imminent, saying that it was "expensive, and it does not pay to take any chances on such trades"; that all the deals were on "margins"; and, finally, that plaintiff wrote the grain company that it had "scalped" the market on one of its deals-we are impelled to the conclusion that there was competent and substantial evidence to warrant the court in submitting the case to the jury, and that its determination should stand. We have examined the other errors assigned by appellant and find them without merit. We therefore recommend that the judgment and order appealed from be affirmed. PER CURIAM. For the reasons given in the foregoing opinion, the judgment and order appealed from are affirmed. 2. Judgment 833-Judgment may be assigned. Under Rev. Codes 1921, § 6837, providing that property of any kind may be transferred except as otherwise provided, and which contains no provision forbidding transfer of judgments, a judgment may be assigned. 3. Banks and banking and transfer a judgment. It is one of the incidental powers of a banking corporation to sell and transfer a judgment owned by it. that the bank had no authority to make the Where a judgment assigned by a bank was admitted in evidence over the objection that the bank had no authority to make the assignment, that the vice president was duly authorized to the seal of the bank was prima facie evidence make the assignment, and that the execution of it was the act of the corporation. of written assignment of judgment held not prejudicial. Under Rev. Codes 1921, § 6837, providing that property of any kind may be transferred except as otherwise provided by that chapter, which contains no exception relating to transfer of judgments, and section 6841, providing that transfer may be made without writing in any case in which a writing is not expressly required by statute, in view of the fact that no statute requires a judgment to be transferred by writing, in an action on a judgment assigned by a bank, in which defendant made no effort to controvert evidence that the transfer had assignment of the judgment was not prejuin fact been made, the admission of a written dicial. 9. Judgment 919-Refusal to admit evidence that plaintiff bought a judgment sued on for benefit of another held not error. In an action on a judgment assigned to 94-Bank may sell plaintiff, in which the answer raised no issue that the judgment was bought by plaintiff for the benefit of another, refusal to admit evidence of that fact was not error, since plaintiff was the real party in interest and entitled to sue within Rev. Codes 1921, § 9067. 10. Judgment 921-Direction of verdict for plaintiff held proper. 4. Trial 91-Where evidence is properly admitted, striking out on other grounds pre sented later is in discretion of trial court. In an action against an administratrix, where a judgment assigned by a bank was properly admitted in evidence, it was within the discretion of the court to refuse to strike it out on other grounds thereafter urged as to its competency, since when a party allows evidence to be introduced without objection he cannot thereafter assert that the court was in error in refusing to strike it out. In an action on a judgment in which the judgment was introduced in evidence and there was no substantial conflict in the evidence, directing a verdict for plaintiff was proper. Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. 5. Trial 91-Permission to move to strike Action by Sol. Genzberger against Ethelyn evidence after being admitted held not to war- C. Adams, as executrix of the estate of J. rant assumption that motion to strike could C. Adams, deceased. From an order denybe made on grounds other than those raised. ing defendant's motion for a new trial after Where a judgment assigned by a bank granting plaintiff's motion for a directed verwas admitted in evidence over an objection dict, defendant appeals. Order affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (205 P.) Wheeler & Baldwin, of Butte, for appel lant. To establish his title to the judgment, plaintiff offered in evidence a written assign Earl N. Genzberger, of Butte, for respond- ment of it to him by the bank, executed on ent. BRANTLY, C. J. [1] This action was brought on April 11, 1914, to recover of the defendant the amount of a judgment. The allegations of the complaint, in brief, are the following: On April 10, 1907, a judgment was duly given and made by the district court of Silver Bow county in favor of plaintiff in an action entitled "State Savings Bank v. J. C. Adams and H. L. Frank," for the sum of $2,739.92. On January 9, 1908, the State Savings Bank, the plaintiff in that action, assigned the judgment to the plaintiff in this action, who is now the owner and holder of it; no part of it having been paid. On October 17, 1913, Adams died in Silver Bow county, leaving a will in which the defendant was named as executrix. On November 22, 1913, the will was admitted to probate by the district court of that county. On the same date letters testamentary were issued to the defendant, whereupon she duly qualified and entered upon the discharge of her duties and ever since that time has been engaged in the performance thereof. On November 29 the executrix caused a notice to the creditors of the deceased to be published in the Butte Daily Post, this being the news paper designated by the order of the court, requiring all persons having claims against the estate to exhibit them to her with the necessary vouchers, at Room 616, Hennessy Building, at Butte, Mont., the place designated by her for the transaction of business of the estate, within ten months. On December 26, within the time specified in the notice, plaintiff presented his claim for $4,207.30, the amount of the judgment including interest. The claim was in writing, verified by the oath of the plaintiff as required by law. It was rejected by the defendant on January 13, 1914. The defendant in her answer admitted all of the allegations of the complaint, except that she denied that the State Savings Bank did on January 9, 1908, or at all, assign the judgment to the plaintiff, or that plaintiff is now or ever was the owner or holder of it. Trial of these issues was had to a jury. At the close of plaintiff's evidence the defendant moved for a nonsuit, which was denied. At the close of all the evidence she moved for a directed verdict. The motion was denied. Thereupon the plaintiff moved for a directed verdict for the amount claimed, together with the costs of the action. This motion was, granted. The defendant has appealed from an order denying her motion for a new trial. She contends that she is entitled to a reversal of the order on the ground that the court erred to her prejudice in its rulings on questions of evidence and in directing a verdict for the plaintiff. its behalf, on January 9, 1908, by E. P. Chapin, its vice president, attested by its corporate seal, and acknowledged before Allen P. Bowie, a notary public of Silver Bow county. It was indorsed, "Approved," by T. E. Collins, as state examiner, who was then in charge of the bank under the provisions of section 4004, Revised Codes of 1907. Plaintiff objected to the introduction of it on the ground that it was incompetent in that the bank had no authority to make it. The court overruled the objection, stating that it would be admitted subject to a motion later to strike it out. The plaintiff then, called in his own behalf, testified that no part of the judgment had been paid. He stated further that he had bought it from the bank. On cross-examination he stated that Collins, the state examiner, was in charge of the bank, but that its doors were open for business. Continuing, he said that the consideration paid by him to the bank for the judgment was $3,014.20 in money. He thereupon rested. Defendant then moved to strike out the assignment on the ground embodied in the objection to its admission, and also on the grounds that it had not been shown that it had been made by an officer of the bank, nor that either Chapin or Collins ever made it. This motion was denied. It is insisted that both rulings were erroneous for the reason that there was no evidence showing that Chapin was in fact the vice president of the bank nor that he had authority to act for it. [2] The argument proceeds upon the theory that, the authority of an officer of a bank to act in its behalf being governed by the general rules of agency, it was error to admit the assignment until it had been shown that Chapin was in fact the vice president of the bank and that he was acting within the scope of his authority as such. There is no merit in this contention. The objection made to the admission of the evidence presented only the question of the authority of the bank to make the assignment. In the form in which it was made, it assumed-at least it did not challenge-the genuineness of Chapin's signature, and that he was acting within the scope of his authority. There can be no question that a judgment is assignable. Haupt v. Burton, 21 Mont. 572, 55 Pac. 110, 69 Am. St. Rep. 698; Merchants' National Bank v. Great Falls Opera House Co., 23 Mont. 33, 57 Pac. 445, 45 L. R. A. 285, 75 Am. St. Rep. 499; Revised Codes 1921, § 6837. [3-6] It requires no citation of authority to sustain the proposition that it is one of the incidental powers of a banking corporation to sell and transfer a judgment owned by it, just as it may sell bonds or other se "A transfer may be made without writing in every case in which a writing is not expressly required by statute." There is no provision in the Code requiring such a transfer to be in writing. Therefore, though it was error to admit the written assignment, the defendant was not prejudiced; she having made no effort to controvert by her evidence that the transfer had been in fact made. Counsel have presented an extended argument in their brief in an effort to maintain the proposition that the certificate of acknowledgment of the assignment was invalid for the reason that it was made by Chapin, the vice president, instead of the president, of the bank, as required by sections 4659 and 4664 of the Revised Codes of 1907 in force at the time it was made. The conclusion announced above renders it unnecessary to consider this contention. We therefore pass it without further notice. curities of which it has become the owner in the ordinary course of business. While the bank had been taken in charge by Collins, as state examiner, it was nevertheless still doing business under his authority. His approval of the assignment obviated the objection to its admission on the ground that the bank. was without authority to make it, and, it having been properly admitted in the first place, it was within the discretion of the court to refuse to strike it out on other grounds thereafter urged as to its incompetency. When a party sits by at a trial and allows evidence to be introduced without objection, he cannot thereafter assert that the court was in error in refusing to strike it out. Yoder v. Reynolds, 28 Mont. 183, 72 Pac. 417; Poindexter & Orr Livestock Co. v. Oregon Short Line Ry. Co., 33 Mont. 338, 83 Pac. 886; Bean v. Missoula Lumber Co., 40 Mont. 31, 104 Pac. 869; State v. Rhys, 40 Mont. 131, 105 Pac. 494; State v. Van, 44 Mont. 374, 120 Pac. 479. The rule announced in these cases applies here. The permission [9] Contention is made that the court erred of the court, given at the time the ruling was in sustaining plaintiff's objection to evidence made that the evidence was admissible, to offered by the defendant, the purpose of later move to strike it out, did not warrant which was to show that the plaintiff had the assumption by counsel that they were at bought the judgment for the benefit of the liberty to include other grounds of objection Frank estate (Frank being now dead) and not when they came to make the motion. Fur- for himself. There was no error in the rulthermore, the objection having impliedly as- ing because it pertained to an issue not presumed the genuineness of the signature of sented by defendant's answer. The arguChapin, the vice president, the seal of the ment is made in this court, however, that it bank was prima facie evidence that he was was prejudicial because it tended to show duly authorized to make the assignment and that the plaintiff is not the real party in inthat the execution of it was the act of the terest, and therefore that he could not maincorporation. 10 Cyc. 944; Bullen V. Miltain this action. It having been made apwaukee Trading Co., 109 Wis. 41, 85 N. W. parent that plaintiff was vested with the 115; McCracken v. City of San Francisco, 16 legal title, he was the real party in interest Cal. 639; Levering v. Mayor, etc., of Mem-within the meaning of the statute and could phis, 7 Humph. 553; President, etc., of B. & D. T. Road v. Myers, 6 Serg. & R. 12, 9 Am. Dec. 402; Burrill v. Nahant Bank, 2 Metc. (Mass.) 163, 35 Am. Dec. 395; Angell & Ames on Corporations, 224. maintain the action. Rev. Codes, 1921, § 9067; Merchants' National Bank v. Great Falls Opera House Co., supra; 20 R. C. L. p. 666. [10] There was no substantial conflict in [7, 8] Again, the plaintiff testified that he the evidence. It will accomplish no useful had bought the judgment from the bank for purpose to enter into an analysis and disthe sum of $3.014.20. Conceding, for the cussion of it. Defendant's motions for nonsake of argument, that the written assign-suit and for a directed verdict were therement was not competent on any one or all fore properly overruled, and the action of of the grounds alleged by the defendant, this the court in directing a verdict for the plaintestimony was sufficient to show prima facie tiff was proper. Other assignments urged ownership of the judgment in the plaintiff. Section 6837, Revised Codes, 1921, supra, de- upon our attention are not of sufficient merit to require special notice. clares: "Property of any kind may be transferred except as otherwise provided by this chapter." We find no exception in the chapter (sections 6835-6858. Rev. Codes 1921) relating to the transfer of judgments. Section 6841 provides further: The order is affirmed. COOPER, HOLLOWAY, and GALEN, JJ., concur. REYNOLDS, J., being absent, takes no part in the foregoing decision. |