Western Union Tel. Co. v. State, ex rel.-165 Ind. 492.

This paragraph of answer must be held insufficient. The body of the pleading does not set out the tenor of the contract exhibited, nor declare its effect upon the per5. formance of the service required of appellant by the

alternative writ of mandate. Proper practice requires the pleader to state the facts growing out of the writing exhibited upon which he relies as constituting a cause of action or defense. Deane v. Indiana Macadam, etc., Co. (1903), 161 Ind. 371; Cole v. State, ex rel. (1892), 131 Ind. 591. No legal or sufficient defense to the allegations of the writ is made to appear by this paragraph of answer, and appellee's demurrer to the same for want of facts was rightly sustained.

The third paragraph of answer avers that the Chicago Board of Trade is a private corporation organized under a special charter granted by the state of Illinois, and that its objects are "to maintain a commercial exchange, to promote uniformity in the customs and usages of merchants, to inculcate principles of justice and equity in trade, to facilitate the speedy adjustment of the business disputes, to acquire and disseminate valuable commercial and economic information, and, generally, to secure to its members the benefits of coöperation in the furtherance of their legitimate pursuits;" that it is given charter power to hold property of all kinds, and dispose of the same by sale and otherwise, and generally to do and carry on any business that is usually conducted by boards of trade or chambers of commerce; but that said charter does not impose on said board the duty of furnishing to the public, or any person whatsoever, the knowledge of quotations of prices made in transactions between its members in its exchange hall; that it has 1,800 members, and that the cost of maintaining itself is $240,000 a year, and that it has for many years provided in Chicago an exchange building, and therein an exchange hall, where its members meet every business day to buy and sell for themselves, or as brokers for their customers, for present

Western Union Tel. Co. v. State, ex rel.-165 Ind. 492.

and future delivery, all kinds of grain and hog products; that such transactions are by open viva voce bidding, and the knowledge of prices there made are a species of property of large value to the board of trade; that the quotations are collected in said exchange hall by employes of the board of trade, and are by them transmitted to respondent, and are by it transmitted automatically to its customers throughout the United States; that prior to June 1, 1900, the board of trade permitted respondent to collect such quotations and to transmit the same to others without restrictions, at which time said board claimed that the indiscriminate distribution of the quotations had resulted in their use by bucket-shops, to the discredit, prejudice and financial injury of the board and its members, and terminated the license of appellant to collect said quotations, and required it to enter into the agreement in writing aforesaid, which was executed about April 15, 1901, and which is set out in full in this paragraph; that since said date respondent has been receiving said quotations under said contract and distributing the same as therein specified, and that, if this respondent were to furnish said quotations otherwise, or to any person not signing an application therefor, as provided in said contract, such action would constitute a breach by respondent of said. contract, and that by reason thereof the board of trade could, and, as respondent verily believes, would, terminate said contract, thus depriving respondent and its customers throughout the country of said quotations; that the Hammond company has never tendered to respondent or the board of trade any application signed by it in the form set out in said contract, but insists that, without its signing such an application, it is entitled to receive, and respondent is required to furnish to it, such quotations.

The fourth paragraph of answer contains the same averments as to the incorporation, powers, exchange hall, members, collection and distribution of the quotations of the Chicago Board of Trade, the loss of said quotations by the

Western Union Tel. Co. v. State, ex rel.-165 Ind. 492.

respondent on August 1, 1900, and the execution finally of the contract of April 15, 1901, as are contained in the third paragraph above. This contract of April 15, 1901, is also set out in extenso in this paragraph. It then alleges: That since said last-mentioned date respondent has been receiving the quotations and distributing the same as provided in the contract, but not to any person not signing an application as therein provided, and that the compelling of respondent to furnish the quotations to petitioner, or any other person not signing an application therefor, would constitute a breach of said contract of April 15, 1901, and would result in respondent and its many customers being deprived of the quotations; that respondent transmits the quotations over wires running from Chicago across Indiana, and that it is not now, and has not been since April 15, 1901, transmitting said quotations to any person in Indiana; that said Hammond company is engaged at Hammond, Indiana, in conducting a bucket-shop, and desires the quotations sought under this writ for the purpose of conducting a bucket-shop and using said quotations therein; that said Hammond company was, at the institution of this suit, and for some time prior thereto had been, engaged in purloining said quotations, or receiving them from others known by said Hammond company to be purloining them, and that said company has been during said time using said quotations in conducting a bucket-shop.

The fifth paragraph of answer avers: That the Hammond company at the time it demanded said quotations and filed its petition herein, was engaged at Hammond in making bets on the fluctuations of the prices, and conducting a bucket-shop, and desired the quotations sought in this proceeding for the purpose of conducting a bucket-shop and gambling therein, in violation of the laws of Indiana, and for no other purpose, and that the Hammond company was, at the institution of this suit, and for some time prior thereto had been, engaged in purloining said continuous

Western Union Tel. Co. v. State, ex rel.-165 Ind. 492.

quotations, or receiving them from others known by said Hammond company to be purloining the same, and, during said time had been using said purloined quotations in conducting a bucket-shop as aforesaid.

The sixth paragraph of answer avers many of the facts contained in the other paragraphs, and concludes with the allegation that the board of trade is a necessary party defendant to the petition, and that without its being so the full determination of the question involved can not be made, and the writ would be unavailing.

Appellant's counsel contend that the last paragraph states a cause of defense in bar of the writ, because of a defect of

parties. This position is untenable, and upon that 6. theory there was no error in sustaining appellee's

demurrer to this paragraph of return. A defect of parties not apparent on the face of the complaint must be set up by a verified plea in abatement, filed and tried before answers in bar are pleaded. §368 Burns 1901, §365 R. S. 1881; Carmien v. Cornell (1897), 148 Ind. 83; Moore v. Harmon (1895), 142 Ind. 555; Watts v. Sweeney (1891), 127 Ind. 116, 22 Am. St. 615; Sheridan Gas, etc., Co. v. Pearson (1898), 19 Ind. App. 252, 65 Am. St. 402.

While the third, fourth and fifth paragraphs of answer are not identical, yet they are all addressed to the same general subject, the right of the board of trade to 7. require an applicant to sign a statement binding

himself not to use such quotations in conducting a bucket-shop, and to refuse to supply them to one engaged in a bucket-shop business. Appellee's counsel vigorously assail these paragraphs of answer, but many of their objections have been answered by the Supreme Court of the United States in the case hereinafter cited. It is insisted that the allegations with regard to option gambling consist of inferences, conclusions and epithets, and as such are not sufficient. In addition to the allegation of facts, with more or less particularity, it is alleged that relator Hammond

Western Union Tel. Co. v. State, ex rel.-165 Ind. 492. Elevator Company is engaged in conducting a bucket-shop. This contract, upon which these paragraphs of answer are founded, prohibits appellant from supplying market quotations to "bucket-shops" by that name, and this term has a well-known meaning, and is defined by the Standard Dietionary as "An office where people may gamble in fractional lots of stocks, grain, or other things which are bought and sold on the exchanges. The bucket-shop uses the terms and outward forms of the exchanges, but differs from exchanges in that there is no delivery, and no expectation or intention to deliver or receive securities or commodities said to be sold or purchased." The definition given in the Century Dictionary is as follows: "An establishment conducted nominally for the transaction of a stock-exchange business, or a business of similar character, but really for the regis tration of bets or wagers, usually for small amounts, on the rise or fall of the prices of stocks, grain, oil, etc., there being no transfer or delivery of the stocks or commodities nominally dealt in."

We have no statute denouncing option gambling as a crime, but contracts for the purchase and sale of com

modities, not to be delivered, but only to be per8. formed by advancing and paying differences, are

void at common law, in the absence of statute. Irwin v. Williar (1884), 110 U. S. 499, 4 Sup. Ct. 160, 28 L. Ed. 225; Rumsey v. Berry (1876), 65 Me. 570; Gregory v. Wendell (1878), 39 Mich. 337, 33 Am. Rep. 390; Mohr v. Miesen (1891), 47 Minn. 228, 49 N. W. 862; Cunningham v. National Bank (1883), 71 Ga. 400, 51 Am. Rep. 266; Cothran v. Ellis (1888), 125 Ill. 496, 16 N. E. 646. This court has denounced such practices in the strongest terms: "The business or operations of the 'bucket-shop' have been the source of much evil. Embezzlements and other crimes on the part of public officers, and bank officials, having the custody of money belonging to others, have been in the past some of the evil fruits directly