ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MINNESOTA.
MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.
The assignments of error set out in the record are fifteen in number. The first five are not pressed in the argument for plaintiff in error, and we only briefly notice them.
In number 1, it was assigned as error that the evidence conclusively showed that the transactions upon which the plaintiffs below claimed a right to recover were wagering and gambling contracts, and that the court erred in not so holding and the jury in not so finding.
This assignment is of course without merit, since it asks us to determine the weight of proof and thus usurp the province of the jury. There was no motion made at the close of the evidence to direct a verdict, and both parties therefore agreed to the submission of the issues of fact to the consideration of the jury. In the absence of such a request we must assume that there was sufficient evidence to warrant the court in permitting the jury to draw the inferences proper to be deduced
from the evidence in the case. Moreover, the bill of exceptions filed in the record does not purport to contain all the evidence.
The second, third, fourth, and fifth assignments of error cover exceptions to the admission in evidence of the rules of the Board of Trade at Chicago, the rules of the clearing house of that board, and the admission in evidence of certain testimony given by James E. Boyd, one of the plaintiffs, explanatory of the clearing house rules, and of the manner in which the payments of losses and profits accruing under the various transactions involved in this action were made by the clearing house of the Chicago Board of Trade. Evidence had been introduced on behalf of plaintiffs that the agreement with Hansen was that the transactions were to be conducted under the rules of the Board of Trade at Chicago, and that such rules were explained to him. The rules and regulations in question were therefore competent evidence. Bibb v. Allen, 149 U.S. 481, 489, 490. The oral testimony of Boyd tended to explain the purport of those rules and the transactions thereunder, and was consequently relevant.
The sixth assignment relates to the overruling of a motion, made at the close of the evidence for plaintiffs, that the court instruct a verdict for the defendant; and assignments seven to fifteen inclusive attack portions of the charge to the jury. As to the alleged error in refusing to instruct a verdict at the close of the evidence for plaintiffs, it is sufficient to say that it has been repeatedly held by this court that when, after such a motion, the defendant introduces testimony, as was done in the case at bar, an exception to the action of the court in refusing to direct a verdict is waived. Runkle v. Burnham, 153 U.S. 216.
Assignment seven asserts that the court erred in giving the following instruction:
"The time during which these transactions occurred commenced in August, 1888, and was concluded and the whole transaction finally closed up in June, 1889. The plaintiffs claim that the defendant applied to the Minneapolis office to employ them to sell and purchase wheat for future delivery;
that he inquired of the manager the commission to be charged, and was informed of the rate, and was also told by the manager in charge that it was a good time to make some scalps, but what that term means has not been developed by the testimony."
The exception taken to this portion of the charge was that the defendant, in his testimony, had "stated and developed the meaning of the word 'scalp,' and that the charge excepted to was a denial of actual, material testimony introduced on the part of the defendant and material to his defence." In his brief, counsel for plaintiff in error asserts that the charge misled the jury, and, in effect, withdrew the evidence on the subject from the jury and wholly annulled its force. Concerning this alleged error, the trial judge, in his opinion denying the motion for a new trial, said:
"It is urged that the jury were misled by a statement in the charge that the word 'scalps,' used by the agent of the defendant before the defendant authorized him to enter into any contracts for the purchase or sale of wheat, misled the jury.
"Hansen, the defendant, testified, in substance, that in the latter part of July, 1888, the manager of the plaintiff at Minneapolis was introduced to him by Mr. George Shepherd, who said: 'I used to have a few deals in options, and when I was trading with him I had never made a loss;' and that the next day after the introduction the manager spoke to him in the Chamber of Commerce building, in Minneapolis, and said that 'he knew I had some trades a year ago and they had roasted me pretty hard then, but he thought it was a good chance to make something back this fall by making some scalps.' On cross-examination, witness, on being asked 'What do you mean by the word "scalps?"' said the word was used on exchange frequently when they mean 'taking a short time, buy and sell as quick as you see a profit, and when have a loss close it out at any amount.' 'A scalp means a short deal.'
"The meaning of the word is not fully disclosed by this testimony, nor is it revealed by the ...