.

(184 N.W.)

in Canada. Formerly he was engaged in the real estate business and had also seven years experience as a grain buyer. He was a stockholder in the Pomona Valley Farmers' Elevator Company which was later reorganized into the Edgeley Co-operative Grain Company, now the owner and holder of the note in suit.

ing said periods this defendant, acting ley. He also owns about 1,000 acres of land through said Pomona Valley Farmers' Elevator Company, as his agent, bought and sold grain options, solely as gambling and speculative operations, it being at all times fully understood by the said Pomona Valley Farmers' Elevator Company, by this defendant, and by all others connected with said transactions, that said transactions were purely and solely gambling and speculative operations; and it was never understood by said Pomona Valley Farmers' Elevator Company, or by this defendant, or by any one else connected therewith, that any actual grain was to be bought or sold, received or delivered by defendant. And defendant alleges that neither this defendant nor Pomona Valley Farmers' Elevator Company, nor any other party connected with the transaction mentioned above, actually intended that there should be any actual transfer, delivery, or receipt of the commodities covered by said options.

The answer is of too great length to be set out in full. The principal defense set forth in the answer is that the entire transaction with reference to the sale and purchase of 10,000 bushels of rye, the facts in reference to which will hereafter be set forth, was one of speculation and gambling. The defendant pleads a counterclaim in the sum of $1,800, the alleged value of the number of bushels of rye delivered by him to the Pomona Valley Farmers' Elevator Company in the fall of 1917, and further claims that it agreed to give credit on the note for that amount which it failed to do. A reply was interposed to the answer averring payment to defendant of the amount of the actual rye delivered in the fall of 1917.

The material facts in the case are substantially as follows: The price of rye in March, 1917, was about $1.49 per bushel. At that time Ernest Steel was the agent of the Pomona Valley Farmers' Elevator Company at Edgeley, N. D. During the month of March, and until April 20, 1917, the Pomona Valley Farmers' Elevator Company sold in the manner hereinafter described for defendant 10,000 bushels of rye at the market price of about $1.49 per bushel. Between the time when defendant had through the said Elevator Company sold the rye and the 20th day of April, 1917, rye on the market had advanced in price to such an extent that a loss of about $4,000 had occurred on the transaction, and at that time for this amount the note in suit was taken. After the giving of the note, rye still continued to advance. The defendant in the month of July, 1917, through the Elevator Company, purchased 10,000 bushels of rye at $2.05 per bushel. The loss on the entire transaction up to the time of the purchase last mentioned was approximately $5,505.

The defendant owns and operates a farm of about 1,000 acres in the vicinity of Edge184 N.W.-56

In the fall of 1916, he sowed 800 acres of winter rye on his La Moure county, North Dakota, farm. In the spring of 1917 he endeavored to contract with the Pomona Valley Farmers' Elevator Company his prospective rye crop, which he estimated at about 12,000 bushels. Steel, the agent of the said Elevator Company, stated that he could not at that time contract to buy the rye, but that it might be handled as a "hedge."

The defendant desired to sell September rye. There was then no dealings in September rye, and the commission firm informed said Elevator Company to this effect. Steel again took the matter up with the commission firm and they finally suggested that what is termed a trial sale for July might be undertaken, and, if that went through, the sale could be later transferred to September when defendant could make actual delivery of the rye. Steel informed the defendant of this and such a sale was made at $1.49 per bushel. At this time he authorized the sale of 1,000 bushels, later of 4,000, and later still of 5,000 bushels, and sales thus authorized were made.

In the fall of 1917, the defendant delivered to the Pomona Valley Farmers' Elevator Company approximately 2,513 bushels of rye. On the 20th day of October, 1917, this was sold at $1.67 per bushel, amounting to a total of $4,196.85. Prior to the time the defendant delivered to the Elevator Company the above-mentioned number of bushels of actual rye, he agreed with it that it should pay him $1 per bushel for each bushel of rye hauled to the elevator, as he claimed it was necessary for him to have this amount to pay the threshing expense, etc., the balance of the selling price of the rye so delivered to be applied on the loss to which reference has heretofore been made. The Elevator Company did make certain advances to the defendant, which with interest, together witb a note to the Nortonville Bank of $150, aggre gated $2,486.85. This amount, deducted fro the $4,196.85, the selling price of the actua rye, left remaining $1,710, $1,505 of which was indorsed by the Elevator Company, on the loss account which had occurred from the time of the execution and delivery of the note of $4,000 until the transaction was finally closed in July by the purchasing on the market of the 10,000 bushels. The remaining $205 was indorsed by the Elevator Company on the note.

The defendant's testimony in substance is that he directed the $1,710 to be applied upon

the $4,000 note, while Steel testified in sub-, When consummated, the transaction would stance that it was to be applied first upon the be what is denominated a "hedge." loss account due to the rye transaction, and The Elevator Company was at all times the balance on the note. The defendant tes-acting for the defendant in the hedging transtified in substance that he gave the plaintiff actions. Defendant had the prospective crop no direction to apply any of the money on the of rye which, if normal, would exceed the loss account, and that he knew of no charge number of bushels sold on the market for or account against him except that repre- him by the Elevator Company, and which sented by the note. we think the record clearly shows was inDefendant attempts to show that the loss tended to be delivered to fulfill the contract at the date of execution and delivery of the of the sale of the 10,000 bushels above renote was $3,000, while the testimony of ferred to. If this be true, and we think Steel is that the losses equaled the amount it is, the transaction was not a gambling of the note. The testimony of each shows one, but purely a hedging transaction, which that the total loss was $5,505, $25 of which is not unlawful, and does not partake of was commission charged by the Tenney Com-the nature of gambling. It is not difficult pany. to perceive that defendant authorized the sale of the 10,000 bushels so that he would be assured of a good price for his crop of rye when it was ready to market, and that he expected to have more than that amount

The testimony of the defendant is to the effect that the whole rye transaction except where the actual rye was delivered was a speculation. It will serve no useful purpose to set forth any of the evidence in detail. of actual rye at the maturity of his crop. There is only one assignment of error, which may be divided into two important contentions:

(1) That the court erred in granting plaintiff's motion for a directed verdict made at the close of the trial, and in not submitting the issues to the jury.

(2) That there was a direct conflict in the evidence on a number of material issues, and for this reason it is claimed that the facts of the case should have been submitted to the jury for determination. It is the defendant's contention that the entire transaction with reference to the 10,000 bushels of rye was purely a gambling transaction, and that for this reason there was no consideration for the note. His contention in this regard is entirely without merit. The testimony clearly shows that he expected that, if his rye crop was normal, he would have about 12,000 bushels. At the time of the transaction rye was about $1.49 per bushel. The defendant expected rye to be a lesser price in the fall, when the rye crop would be ready for sale; hence he desired to contract the sale of it. About the time the transaction took place, the Elevator Company declined to contract for purchase of the prospective crop of rye.

He evidently expected that rye would be a great deal lower in price at marketing time than it was in March, the time of the transaction, and by selling the 10,000 bushels, and by being able to transfer the same on the market from July to September, the time would then have arived when he could deliver an amount of rye equal to that which he had sold, and if at the time of the delivery the market price of rye was only $.75 per bushel, it is not difficult to see that he would have gained about $.75 per bushel by the transaction. But, unfortunately for de fendant, and contrary to his expectations, rye was not a lower price at the time he expected to market same, but continued to advance over the price for which he had sold the 10,000 bushels until it reached $2.05 per bushel, when defendant desired, no doubt, to terminate the loss, and procured the Elevator Company to purchase 10,000 bushels on the market, at which time his loss had reached $5,505. His prospective crop of rye did not materialize as he expected, and hence he could not deliver a sufficient number of bushels to cover the sale of the 10,000 bushels which he had made, and hence the only thing he could do to stop his loss was to buy rye in amount equivalent to the number of bushels which he sold. This he did.

It must also be noticed that the Elevator Company never received any benefit or profit

[1] The Elevator Company would, however, undertake to handle the transaction as a "hedge." The term "hedge" is well understood in connection with transactions on the grain market, and that term needs no fur-from the transaction, and as the transaction ther elucidation. If the transaction could be handled as a hedge, it would result in procuring for the defendant a price for his prospective crop of rye, at the time of marketing thereof, of not less than the amount for which the 10,000 bushels were sold on the market by the Elevator Company for defendant. In other words, the 10,000 bushels Other transactions of the defendant on the would represent a sale of defendant's prosgrain market which occurred prior to the one pective crop of rye which was then in ex- in question, and which are claimed to have istence, but which had yet not matured. been speculation, need no consideration here,

was handled, there was no way in which it could make a profit on it. Certainly it is unbelievable that it would entail a great loss on itself without expectation or any possibility of profit to it. It is clear that it was handling the matter for the defendant as a "hedge," and not otherwise.

(184 N.W.)

as they have no bearing on the issues here, the evidence, and no room for different coninvolved.

clusions to be drawn by reasonable men. Furthermore the evidence was such that it is manifest that there could be no different result upon another trial. In other words the disposition made of the case in the opinion prepared by the Chief Justice is the most favorable to the defendant that could possibly be made upon another trial. And upon the oral argument plaintiff's counsel stated that in event this court should hold that the question as to the proper application of the $1,710 was one for, and should not have been withdrawn from, the jury, that then the plantiff, in order to terminate the litigation, would and did consent that the issue might be determined against it, and the judgment modified accordingly by this court. Hence I concur in the disposition made of this cause in the opinion written by the Chief Justice.

[2, 3] As to defendant's second contention that there was a conflict of evidence on material issues which should have been submitted to a jury, it is only necessary to say that such conflict, if any, related only to the alleged direction of defendant to the Ele vator Company relative to the application of a portion of the money received for the rye actually delivered to the Elevator Company. A certain amount of this money the Elevator Company applied upon defendant's account with it, and the balance upon the note as above stated. The defendant's contention is that he directed such money to be applied upon the note, and because the issues in this regard were not submitted to the jury, he contends there should be a new trial. Assuming, however, that the defendant is correct in his contention, and assuming further that this is the only relief a new trial would give defendant, and we think this assumption is true, we are clearly of the opinion that in the circumstances of this case, that would not be sufficient reason for granting a new trial. Instead thereof, this court could, (Supreme Court of Nebraska. Oct. 14, 1921.) with consent of plaintiff, order the judgment modified so that the defendant would obtain benefit equal to that which he claims he would have received had the money been indorsed on the note instead of applied to the payment of the account.

The note bore 7 per cent. interest before and 10 per cent, after maturity. The account drew the legal rate of 6 per cent. per annum. And assuming, but not deciding, that defendant directed the $1,710, the balance of the price of rye sold to the Elevator Company, after deducting the amount it advanced him for expenses to which reference heretofore has been made, to be applied on the note, it is clear that he would be entitled only to a credit of the difference between the interest at the rate the note bore, and interest at the legal rate on the amount paid since the date of payment, and if the judgment is so modified there would be no issue remaining for a new trial. The plaintiff on oral argument consented that this modification might be made. Plainly, under the evidence the defendant is entitled to no other relief. The judgment is therefore directed to be modified as above indicated, and so modified it is affirmed. Respondent is entitled to his costs and disbursements on appeal.

BRONSON, BIRDZELL, and ROBINSON, JJ., concur.

CHRISTIANSON, J. (concurring). I agree with Mr. Chief Justice GRACE that the only question for the jury in this case was whether the defendant directed the plaintiff to apply the $1,710 upon the note. Upon all other issues of fact there was no conflict in

WHEELER v. STATE. (No. 21828.)

Rape

(Syllabus by the Court.)

54(4)—In a prosecution for attempt to commit rape, facts held to corroborate prosecutrix's story.

In a prosecution, charging attempt to commit rape, where defendant admitted being with prosecutrix, but contended that what he did was with her consent, held, that her complaint to her mother, made immediately after the alleged assault, the condition of her clothing, the bruised, scratched and bleeding condition of her body, and the shattered condition of her nervous system, furnished sufficient corroboration of her story that the assault made upon her was against her will and felonious.

Error to District Court, Pawnee County; Stewart, Judge.

Joseph C. Wheeler was convicted of attempt to commit rape, and he brings error. Affirmed.

Matthew Gering, of Plattsmouth, and J. C. Dort, of Pawnee City, for plaintiff in error. Clarence A. Davis, Atty. Gen., and Mason Wheeler, Ass't Atty. Gen., for the State.

Heard before MORRISSEY, C. J. and ALDRICH, DAY, DEAN, FLANSBURG, LETTON, and ROSE, JJ.

FLANSBURG, J. Criminal prosecution on a charge of attempt to commit rape. Accused was convicted and brings the case here for review.

The contention is that the story of the prosecutrix is not corroborated.

The testimony of the prosecutrix is that she had met the defendant, who, during the absence of his wife from home, was board

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(184 N.W.)

NEDELA v. MARES AUTO CO. (No. 21522.) (Supreme Court of Nebraska. Oct. 14, 1921.)

(Syllabus by the Court.)

Master and servant 362-Employment in garage held not "casual employment" within compensation act.

One who is employed to work in an automobile garage without any understanding as to the time of his employment, or the particular character of labor he is to perform, and assembles and sets up automobiles and performs such other labor in and about the garage as he is directed to do by the foreman or manager, and such work is incident to, and in the usual course of, the business, is held not to be casually employed within the meaning of the Em-long you was to work for him? A. Nothing ployers' Liability Act (Rev. St. 1913, §§ 36423696).

Action by John Nedela against the Mares five days, the plaintiff was engaged in asAuto Company for personal injuries. dict for plaintiff, motion for new trial overruled, and defendant appeals. Reversed.

"Such agreement or the election hereinafter provided for shall be a surrender by the parties form or amount of compensation or determinathereto of their rights to any other method, tion thereof than as provided in part II of this article."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes