favor. Q. But, if it was a loss, you should lose what you put up? A. Yes. Q. And that was so in regard to each one of these transactions? A. Yes; each and every one."

Here is positive evidence that it was distinctly stated between the plaintiffs' agent and the defendant that the contracts were to be gambling contracts. The knowledge of the plaintiffs' agent is their knowledge, and it is binding on them. It is conceded that none of the grain mentioned in these transactions was ever delivered, and there is no evidence that the plaintiffs owned any grain, or that they purchased any for delivery to the defendant. All of the purchases were for future deliveries, and the statements of the transactions rendered by the plaintiffs, and their bill of particulars, corroborate the testimony of the defendant that the transactions were intended by both parties to be wager contracts. The plaintiffs' agent did not deny that he had the conversation with the defendant, as testified by the defendant. It is true that he testified that he intended that the grain should be delivered. It is competent for a person to testify that he engaged in a transaction in good faith, or with a particular intent; but, if the transaction be such that from it, or from the other evidence in the case, a different intent may be fairly inferred, the question with what intent is one for the jury. If the testimony of a party that he committed an act which, if done with a lawful intent, would be innocent, but, if with an unlawful intent, a crime, is to be held to be conclusive, convictions in criminal cases in which intent is a material fact will be quite difficult. The intent with which these parties bought and sold may be inferred from the course of dealing between them. Kenyon v. Luther, (Sup.) 4 N. Y. Supp. 498. I think the evidence presented a question of fact for the jury, and that the court erred in directing a verdict for the plaintiffs. The judgment and order should be reversed, and a new trial granted, with costs to the appellant to abide the event.

O'BRIEN, J., (dissenting.) The action was brought to recover upen an account for certain goods purchased, services rendered, and moneys advanced. The plaintiffs were commission merchants and brokers in Chicago. Through one Hedge, their agent at New York city, they had transactions with the defendant, which consisted in the purchase and sale for him of wheat and corn, which resulted in a loss, and for which, less the amount already paid by defendant, the action is brought. Though two exceptions were taken to rulings upon evidence, one of which alone is urged, it is unnecessary to discuss them, as a mere examination will demonstrate that they are untenable. The substantial and important question, going directly to the merits, is whether or not the direction of a verdict in plaintiffs' favor was right. The controversy centered upon whether the purchases and sales were actual transactions, or mere bookkeeping; the form of actual transactions being assumed, but the real intent of the parties being to gamble upon the differences between the market value and the contract price. Appellant insists that there was sufficient evidence rendering it necessary, on his re

quest, for the trial judge to submit the question to the jury whether it was the intention of the parties that the grain purchased or sold should not be delivered, and that only differences between the contract and market price should be adjusted, thereby rendering the contracts void as mere wagers; and that the direction of a verdict against him was error. Two witnesses, Hedge and Palmeter, who represented plaintiffs, swore in positive terms that it was not their agreement or intention to deal in differences; the latter testifying that the orders were executed by his telegraphing to and receiving a reply from Chicago that the firm there had bought the wheat on the Exchange or Board of Trade, and that the wheat was ordered to be ready for defendant at the time it was contracted to be deliv ered. Defendant, on the other hand, testified that he had no intention to contract for delivery of either wheat or corn, and that the understanding was a contract to merely speculate in differences. Defendant also testified that the substance of the conversations between himself and the plaintiffs' agent as to the character of these transactions was that he (the plaintiffs' agent) would buy and sell on options, the differences, if resulting favorably, to go to defendant, and, if a loss, to be paid by defendant. If the question were solely as to defendant's intent, this testimony would have been sufficient to require its submission to the jury. It was necessary, however, for defendant, in support of the burden placed on him of estab lishing the defense of a wagering contract, to give some evidence tending to show, not that he alone, but that both parties to the transaction, intended to gamble; the rule being: "When it is necessary to prove concurrence of intent, as in an illegal agreement, the intent of each must be proven." This rule was laid down in the opinion of this general term on the former appeal, (14 N. Y. Supp. 498,) and finds support in abundant authority.

Now, who were the parties to these contracts? Certainly not the plaintiffs and the defendant. The defendant never contracted to sell to or buy from the plaintiffs any wheat. As said in Lehman v. Strassberger, 2 Woods, 554, which was an action in many respects similar to the case at bar:

"The parties with whom defendant contracted were persons other than plaintiffs, whose names were not disclosed, and plaintiffs were only factors of defendant to make contracts with other parties, the plaintiffs being mere agents for the defendant in the transaction."

In that case, where the brokers had advanced money to the principal to pay losses incurred in an illegal transaction, and took his note for the money so advanced, it was held that a recovery could be had upon such note. The case at bar for the plaintiffs is stronger than the one cited, because, even though it be assumed that plaintiffs were bound by the knowledge of their agent that the defendant intended not to buy or sell wheat for actual delivery, but only to adjust differences, no evidence was offered tending to show that the persons with whom the plaintiffs dealt on behalf of the defendant had a similar intention not to receive or deliver, pursuant to the contract made, the actual commodity. On the

contrary, the only testimony showing the intention of the undisclosed principals with whom the defendant, through plaintiffs, contracted, is that the transactions between them were regulated and controlled by the rules of the Chicago Board of Trade, which will not be presumed to have adopted an illegal course of business. said in Story v. Salomon, 71 N. Y. 422:

As

We

"We should not infer an illegal intent unless obliged to. may guess that the parties were speculating upon the fluctuations in the price of the stock, and that the defendant was not to be required to take or deliver any stock in any case, but simply to pay differences; but a contract which can have legal interpretation and effect should not be condemned, without any proof, in that way."

It

These cases relied upon by defendant were different in their facts, and are easily distinguishable. Thus, Peck v. Doran & Wright Co., 57 Hun, 345, 10 N. Y. Supp. 401, was an action to recover, under the statute, money lost by plaintiff under a wagering contract with defendant upon the market price of wheat. was therein testified that the defendant's agents, at the commencement of the dealings, had stated that "they assume their orders, and book them themselves; that they had no wheat to deliver, and didn't expect their customers to want any wheat; that it was merely to adjust the difference as between the market price and the prices marked on the slip, [contract.]" Kenyon v. Luther, (Sup.) 4 N. Y. Supp. 498, was an action brought, as here, to recover for commissions earned, and losses sustained, by plaintiff. evidence excluded and excepted to, defendant offered to prove, not only that he did not intend to purchase any wheat, but also the course of dealing between plaintiff and the person in whose name the contract was made, and thus to show circumstances which might have established, or tended to establish, the fact that the same intent existed on the part of the plaintiff. The opinion, after referring to the rule that, in the absence of evidence to the contrary, an illegal intent will not be presumed, continues:

By

"We are unable to say that, if the defendants had been permitted to prove their intent, and the course of dealing between the plaintiff and the person in whose name the contract was made, they would not then have furnished evidence which would have been sufficient to establish their defense, or at least sufficient to have made a question of fact for the jury."

We start, therefore, with the well-settled legal proposition that the burden of proof was on the defendant to establish his defense. This required that he should prove, or present sufficient evidence to make it a question for the jury, that the transaction, as between all the parties, was a wagering contract. If here it had been shown, as in Peck v. Doran & Wright Co., supra, that the contract was really one made between the plaintiffs and the defendant, then unquestionably there would have been sufficient evidence, not only of defendant's intention, but also of the mental condition of the plaintiffs' agent, which would have been binding upon them as to their intent. Thus, in addition to defendant's own testimony as to the conversation between him and plaintiffs' agent, the accounts rendered would be consistent with the view

that there was an intention on plaintiffs' part to deal only in differences. But when we remember that the contract was made with third persons, as affecting whom not a scintilla of evidence was offered, such accounts are equally consistent with the view of actual transactions. Upon such evidence, equally consistent with two diverse views, one of which would uphold the contract as legal, and the other condemn it as illegal, the former view should prevail. Put in its strongest light, all that the defendant's evidence tended to prove was that the plaintiffs, as his brokers, had knowledge of his intent not to actually receive or deliver wheat, but merely to settle differences upon the rise and fall of the market. But this, without evidence that the persons with whom the contract was made had a similar intent, would not stamp the contracts themselves as wagering contracts and thus illegal, because here, again, until the contrary was shown, the legal presumption would be that they were valid. No proof was offered, except by plaintiffs, as to the manner of executing the orders; and yet, although they testified directly to the contrary, we would have to assume, in order to sustain defendant's position, that a jury would be at liberty, without proof, to guess, and thus decide, that no wheat or corn was ever bought or sold by plaintiffs for defendant's account, although, as stated, the only evidence given was all the other way.

Appellant contends, however, that, as such witnesses were interested, it was for the jury to determine the truth or falsity of their testimony. We think that in appealing to this rule the appellant overlooks the fact, already twice adverted to, that the burden of showing the transaction to be an illegal one was on him; and that the direction of a verdict resulted from his failure to sustain such burden by any or sufficient proof to make it proper or essential to submit the question to the jury. Inasmuch as the quantum of proof to be presented in a case like this was very fully and ably discussed in Bigelow v. Benedict, 70 N. Y. 207, it is unnecessary for us to restate it. As the defendant failed to offer any evidence tending to show the intent of the persons with whom the plaintiffs, on his behalf, contracted for the purchase or sale of wheat, there was no question for the jury, and the direction of the trial court was right. The judgment should therefore be affirmed, with costs and disbursements.

(75 Hun, 377.)

ZWEIGLE v. HOHMAN et al.

(Supreme Court, General Term, Fifth Department. January 18, 1894.) 1. LIMITATION OF ACTIONS-CONCURRING LAW AND EQUITY JURISDICTION. The acceptance of a devise on condition that the devisee pay a certain sum to a third person imposes a personal liability on the devisee and creates a charge in equity on the land, the remedies for which are concurrent, and the 10 years' limitation (Code Civil Proc. § 388) does not apply, as it relates only to cases exclusively within the jurisdiction of equity.

2. SAME-PROMISE IMPLIED FROM ACCEPTANCE OF DEVISE.

Where a will under seal is conditioned that a devisee pay a certain sum of money to a third person, the liability of the devisee to pay such sum is founded on a promise implied from the acceptance of the devise, and an action therefor is not an action on a sealed instrument.

Appeal from Monroe county court.

Action by John G. Zweigle against Maria Hohman, Henry Hohman, and others. From a judgment in favor of defendants Hohman on issues between the defendants, defendant Otto Beck appeals. Affirmed.

The action was for the foreclosure of two mortgages made by the defendants Hohman,-one to the plaintiff, of date July 1, 1878, to secure the payment of $350; the other, of date January 1, 1879, to John Burger, to secure the payment of $500, and by the latter assigned to the plaintiff. The defendants Beck, who are husband and wife, alone defend. They allege an estate of inheritance in an undivided one-third of the premises in the defendant Otto Beck, founded upon the following facts: In May, 1876, Margaretha Beck made her will, whereby she gave to the defendants Hohman all her property, real and personal, upon the condition that they pay to each of her children, Ludwina Beck, Balthazar Beck, and Otto Beck, $300, on the arrival of the latter at the age of 21 years, except as to Ludwina, whose legacy was to be paid when she arrived at age. The testatrix soon after died seised of the premises in question, and the will was admitted to probate in February, 1877. The defendants Hohman went into possession of the premises immediately after the death of testatrix. The defendant Otto Beck was then 14 years of age. He alleges that no part of his legacy has been paid to him. The defendants Hohman, by their answer, alleged that the legacy to the defendant Otto Beck has been paid to him, and, further, that the cause of action did not accrue within six years before the commencement of the action. It was begun in April, 1892. The trial court directed judgment of foreclosure and sale, in favor of the plaintiff, and, upon the issue between the defendants Beck and Hohman, directed judgment for the latter.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

E. F. Turk, for appellant.

Wile & Goff, for respondent Zweigle.

William G. Jerome, for respondents Hohman.

BRADLEY, J. The provision in the will to the effect that the testatrix gave her property to the defendants Hohman upon the condition that they paid the legacies there mentioned did not create a condition precedent to the vesting of the estate in them. They, on acceptance of the devise, were seised in fee of the premises, and became personally liable to pay the legacies; and, by reason of the condition so expressed in the will, the legacies were made a charge in equity upon the land. Loder v. Hatfield, 71 N. Y. 92. The tes tatrix was mother of the legatee Ottc Beck, then an infant, and in loco parentis to him; and for that reason, and because no other provision was made for him, he was entitled to interest upon his legacy from the time of her death. Brown v. Knapps, 79 N. Y. 136. And the charge of it upon the premises was supericr to the lien of the mortgages in question, and was in due time available as such, unless reasons existed which would have enabled the mortgagees to insist, if necessary for their protection, that payment of the legacy