For rulings under Illinois statute against options, see Tenney v. Foote, 4 Ill. Ap. 594; Williams v. Tiedemann, 6 Mo. Ap. 269; and see article on Political Economy and Criminal Law, in Criminal Law Magazine for Jan. 1882.

In Rourke v. Short, 5 E. & B. 904, under the English statute, there was a difference of opinion between the plaintiff and the defendant, when settling a bargain for the sale of rags, as to the price fixed in a prior transaction between the parties. They finally agreed that the rags were to be paid for at three shillings a cwt. if the defendant's report of the former transaction was correct, and six shillings a cwt. if the plaintiff's report was correct; three shillings being less and six shillings more than the value of the goods per cwt. The goods were in any view to be delivered at the price paid. It was held that the contract was void as involving a wager.

As to agreements to create a " corner" in stock, see infra, sec 4536.

It is a significant fact that in the examination on Apr. 16, 1882, before the New York Senate Committee on corners in grain, Mr. Franklin Edsen, formerly president of the Produce Exchange, testified that the dealing in futures in grain was often necessary in order to handle grain economically.

In Chandler in re, 13 Am. L. Reg. N. S. 310 (an attempt to get up a "corner" in oats), the court held that none of the parties to the transaction who went into it without any intention of delivering or taking the oats could sue on the contract. The transaction "was as manifestly a bet upon the future price of the grain in question as any that could be made upon the speed of a horse or the turn of a card." The court did not hold that all "option" contracts were void, even though the party agreeing to deliver did not have the article on hand. The contract only became gambling when the object was to corner or otherwise to speculate. " Options stand on the same footing as any other species of contract. Where it appears that the intention of the parties is to contract for the payment of 'differences' merely, and not to deliver or accept stock, the law pronounces it a wager, irrespective of the form used to cover the transaction; but, on the other hand, where there is a bona fide intention to deliver or receive property, the agreement will be sustained." Dos Passos on Stock Brokers, 454.

The rulings of the courts on this issue must be considered in connection with the legislation to which they are that the vendor should have the thing in his possession. There may be actual sale, even without tactual possession on either tion in question is not within the terms of the gaming laws of Missouri, but if it was an option deal, as charged, would he nnenforceable between the original parties, and even in the hands of an innocent indorsee for value.

"The distinction is so clearly drawn, and the doctrines so exhaustively considered by Judge Thayer, of the St. Louis circuit court (with whose manuscript opinion in the Tinsley case I have been favored), that it would be a mere repetition of what has been thus so ably done, to attempt to travel over the same ground, and hence I quote largely from his opinion as follows: -

" ' The law is now well settled, in all of the states where the question has arisen, that there can be no recovery had upon a contract or sale of personalty where the parties to such contract do not intend an actual delivery of the articles bargained for, but merely intend to settle differences at some future day between the price agreed to be paid for the commodity and the then market price. Such contracts are universally held to be invalid as against public policy, and in some instances they have been held to be in violation of statutes relative to gaming and wagers. Lyon v. Culbertson, 83 Ill. 33; Sampson v. Shaw, 101 Mass. 145; Kirkpatrick v. Bonsall, 72 Pa. St. 155; Gregory v. Wendell, 39 Mich. 337; Rumsey v. Berry, 65 Me. 570; Williams v. Tiedemann, 6 Mo. App. 269. But there is an apparent conflict of opinion touching the question whether a broker, factor, or commission merchant, who has been employed by his principal to make contracts of this character with some third party, and has done so in his own name, but for his principal's benefit, may maintain an action against his principal to recover money expended for his principal at his principal's request in the settlement of losses accruing under such contracts. This precise question was considered in the case of Green, 15 N. B. R. 201 (U. S. Dist. Court, W, D. Wis.), and it was there held that the broker could not recover from his principal for moneys thus expended in the settlement of losses on such illegal ventures. But it is to be observed that the court, in the case last cited, based its decision mainly on a statute of Wisconsin, which declared all 'notes and agreements void that had been given for repaying any money knowingly advanced for any betting and gaming at the time of such betting or gaming.' And the evidence in the case cited showed that the broker not only made the illegal contracts in question, but that he advanced the money for the venture. The court accordingly held that the case fell within the statute, and that the broker could not recover money thus knowingly advanced in furtherance of a gambling transaction.

" ' There are other cases, arising between factors and brokers and their principals, which the courts have apparently treated as though the action was between the principals to the illegal transaction. But the different relation existing between the agent and his principal, in actions by the former to recover moneys expended for his principal in the settlement of losses on wager contracts, was apparently not called to the attention of the court. Vide Gregory v. Wendell, supra; Williams v. Tiedemann, supra.

" ' On the other hand, the law is well settled in England that if a broker be stock-jobbing is illegal, money lent for the purpose of carrying it on cannot be recovered, supposing it appear that the money was lent knowingly and with the purpose of furthering the illegal act. "If it be unlawful in one man to pay, how can it be lawful for another to furnish him with the means of payment?"1 - It is not necessary to constitute a valid contract,