Benj. Sales, (Amer. Ed.) §§ 81, 82. It is further well settled that the burden of proof is upon the party who seeks to impeach such transactions by showing affirmatively their illegality. Roundtree v. Smith, 108 U. S. 269, 2 Sup. Ct. Rep. 630; Dykers v. Townsend, 24 N. Y. 57; Irwin v. Williar, 110 U. S. 499, 507, 508, 4 Sup. Ct. Rep. 160. In this latter case the trial court charged the jury that the burden of showing that the parties were carrying on a wagering business, and were not engaged in legitimate trade or speculation, rests upon the defendant. On their face these transactions are legal, and the law does not, in the absence of proof, presume that the parties are gambling. “A person may make a contract for the sale of personal property for future delivery which he has not got. Merchants and traders often do this. A contract for the sale of personal property which the vendor does not own or possess, but expects to obtain by purchase or otherwise, is binding if an actual transfer of property is contemplated. A transaction which on its face is legitimate cannot be held void as a wagering contract by showing that one party only so understood and meant it to be. The proof must go further, and show that this understanding was mutual,— that both parties so understood the transaction. If, however, at the time of entering into a contract for the sale of personal property for future delivery, it be contemplated by both parties that at the time fixed for delivery the purchaser shall merely receive or pay the difference between the contract and the market price, the transaction is a wager, and nothing more. * * It is not sufficient for the defendant to prove that Irwin & Davis never understood that they were to deliver wheat in fulfillment of the sales made for them by the plaintiffs. The presumption is that the plaintiffs expected Irwin & Davis to execute their contracts,-expected them to deliver the amount of grain sold; and before you can find that the sales were gambling transactions, and void, you must find from the proof that the plaintiffs knew or had reason to believe that Irwin & Davis contemplated nothing but a wagering transaction, and acted for them accordingly. If the plaintiffs made sales of wheat for Irwin & Davis for future delivery, understanding that these contracts would be filled by the delivery of grain at the time agreed upon, Irwin & Davis were liable to the plaintiffs, even though they meant to gamble, and nothing more."

This court approved that charge as a correct statement of the law upon the subject of what constitutes a wagering contract. It Is directly in point here, for the evidence fails to show not only that Bibb & Co. intended it as a wagering contract, but it fails to show also that the plaintiffs so understood it. The testimony establishes that the plaintiffs did not, in fact, so understand it.

It further appears that in the memoran

dum or "slip contracts" of sale actually made by the plaintiffs for the account of Bibb & Co., the sales were described as made "subject to the rules and regulations of the New York Cotton Exchange." Under these circumstances, we are of opinion that the testimony fails to establish that the contracts in question were wagering transactions, and therefore void. The testimony is so clear to the contrary that the court below, under the settled rules of this court, was certainly justifiable in not submitting that question to the jury; for, if it had been submitted, and the jury had found that the contracts were wagers, it would have been the duty of the court to set aside their verdict. There is no merit in this assignment of error.

It is next urged on behalf of the plaintiff in error that the contracts for the sale of the cotton were void under the statute of frauds of the state of New York, because there was no sufficient note or memorandum in writing of the transactions, signed by the parties to be charged thereby. We are of opinion that this contention cannot be sustained un-, der the facts of the case.

*

After agreeing upon the terms in which the business should be transacted, and the use of Shepperson's code of cipher, B. S. Bibb & Co., on November 9, 10, and 11, 1886, telegraphed orders to the plaintiffs to sell for them in the aggregate 10,000 bales of cotton for January and February delivery. These dispatches were sent according to the form of Shepperson's code, and directed the sales for delivery for account of designated names such as "Albert," "Alfred," "Alexander," "Amanda," "Andrew," "Winston," etc., which names were intended and understood to represent the firm name of B. S. Bibb & Co. Thus, under date of November 9, 1886, B. S. Bibb & Co. telegraphed to plaintiffs: "If bureau report is considered favorable to-morrow sell for January delivery 1,000 bales cotton account Albert. Sell for February delivery 1,000 bales account Alfred. Sell for January delivery 1,000 bales account Alexander. Sell for January delivery 500 bales cotton account Andrew. Act promptly if favorable." So, under date of November 10, 1886, they telegraphed: "If market opens as high or higher to-morrow sell for January delivery 1,500 bales cotton account Winston. Keep us thoroughly posted."

These dispatches, as well as others of a similar character of later dates, meant "sell for January or February delivery the designated number of bales on account of B. S. Bibb & Company," and had attached to them, by the express terms of Shepperson's code, the understanding and agreement, already quoted, that the orders were to be subject in every respect to the by-laws and rules of the cotton exchange of New York, with the additional terms read into the telegrams, and as a part thereof, the stipula tion that the sales were to be subject to

The plaintiffs executed these orders promptly as they were received. In the execution of the orders they made what are called "slip contracts" in duplicate, one copy, signed by the purchaser, being delivered to the plaintiffs, and the other, signed by the plaintiffs as brokers, being given to the purchaser. There were 19 sales of cotton to various persons named in these "slip contracts," which were in the following form: "New York, Nov. 10, 1886.

× Per Z. & White, seventy-five."

These contracts differed only in date, in the name of the purchaser, in the quantity of cotton sold, and the price thereof. As each sale was thus made, it was reported promptly by the plaintiffs to the defendants, both by letter and by telegram, giving price, and stating that the orders to sell were executed. So that the defendants were kept accurately advised of each transaction made in pursuance of their order.

In addition to the "slip contracts" in the form described above delivered by the plaintiffs to the purchasers of the cotton sold, and received by them from the buyers of cotton, the sales were entered upon the books of the plaintiffs in conformity with such contracts. These "slip contracts' show upor their face that the purchaser named therein bought cotton, sold for account of the name adopted to represent B. S. Bibb & Co. They gave the price, and the number of bales, and the time of delivery. They were in the form prescribed by the rules and regulations of the cotton exchange, and constitute bought and sold notes, which, taken together, as they should be, constitute a sufficient memorandum in writing of the contract between the brokers, or their principal, and the purchasers of the cotton, to meet the requirements of the statute of frauds. Peabody v. Speyers, 56 N. Y. 230, 236, 237; Newberry v. Wall, 84 N. Y. 576, 580; Butler v. Thomson, 92 U. S. 412; Beckwith v. Talbot, 95 U. S. 289; Ryan v. U. S., 136 U. S. 68, 83, 10 Sup. Ct. Rep. 913; Bayne v. Wiggins, 139 U. S. 210, 11 Sup. Ct. Rep. 521.

In this latter case this court, speaking by Mr. Justice Harlan, said: "The principle is well established that a complete contract, binding under the statute of frauds, may be gathered from letters, writings, and telegrams between the parties relating to the subject

with each other that they may be fairly said to constitute one paper relating to the contract." So in Benjamin on Sales, (Amer. Ed. § 296,) after a review of the authorities, both English and American, it is stated: "The bought and sold notes, when they cor respond and state all of the terms of the bargain, are complete and sufficient evidence to satisfy the statute, even though there be no entry in the broker's books, or, what is equivalent, only an unsigned entry." Goom v. Aflalo, 6 Barn. & C. 117; Sievewright v. Archibald, 17 Q. B. 115; Thompson v. Gardiner, 1 C. P. Div. 777. Such, too, is the rule in New York, as shown by the earlier cases of Peltier v. Collins, 3 Wend. 459; Davis V. Shields, 26 Wend. 341.

The bought and sold notes in question in this case, called "slip contracts," when read in the light of the rules and regulations of the cotton exchange, and considered in connection with the letters and telegrams be tween the parties, constitute a sufficient note or memorandum in writing of the transactions to satisfy the requirements of the statute of frauds. It is no valid objection to these "slip contracts," executed in duplicate, that the sales purported to be made on account of "Albert," "Alfred," "Alexander," "Amanda," and "Winston," etc., which names were adopted by the defendants, and which represented them and their account. Parol evidence was clearly competent to show that these fictitious names, which defendants had adopted, represented them as the parties for whose account the sales were made.

But, aside from this, and independent of the question whether the bought and sold notes, called the "slip contracts," constitute a compliance with the statute of frauds, the contracts were fully executed, and the transactions closed, before the plaintiffs commenced the present suit. It is well settled by the authorities that the defense of the statute of frauds cannot be set up against an executed contract. Dodge v. Crandall, 30 N. Y. 304; Brown v. Trust Co., 117 N. Y. 273, 22 N. E. Rep. 952; Madden v. Floyd, 69 Ala. 221, 225; Gordon v. Tweedy, 71 Ala. 202, 214; Huntley v. Huntley, 114 U. S. 394, 400, 5 Sup. Ct. Rep. 884; Browne, St. Frauds, § 116. This rule proceeds and rests upon the principle that there is "no rule of law which prevents a party from performing a promise which could not be legally enforced, or which will permit a party, morally, but not legally, bound to do a certain act or thing, upon the act or thing being done, to recall it to the prejudice of the promisee, on the plea that the promise, while still executory, could not, by reason of some technical rule of law, have been enforced by action." Newman v. Nellis, 97 N. Y. 285, 291.

We know of no principle on which the agent can be deprived of a right to his

commissions and advances in the execution of his agency for a principal on the ground that he has not avoided a contract which was not in strict conformity with the statute of frauds, in the absence of any instruction or instructions from the principal not to comply therewith. Contracts not in conformity with the statute are only voidable and not illegal, and an agent may therefore execute such voidable contracts without being chargeable with either fraud, misconduct, or disregard of the principal's rights. If the statute of frauds was not complied with in making the sale contracts in the present case, we do not see that the defendant was in a position to take advantage thereof, or that such want of compliance with the statute, after the contracts were executed, would constitute any defense to the action. The suit was not brought on these contracts of sale, which the plaintiff in error claims were voidable under the New York statute of frauds. It is an action by the agents against their principal to recover for work and labor performed, and money paid out at the principal's instance and request, and in the settlement of the principal's business, in which the agent had authority to make disbursements for him. In the present case the plaintiff's had, by their contract, rendered themselves personally responsible for the losses which might and did occur under the contracts of sale made for account of the defendant, and as such agents they are entitled to recover against their principal the full amount expended by them for him in the transactions. If, in closing out the contracts of sale, profits had been realized on the transactions, whether by reason of decline in the price of cotton, or by the purchases "to cover" the cotton sold, the brokers would, upon well-settled principles, have been liable to their principal for the same. They could not have set up or interposed as a valid defense to such liability that the contracts of sale out of which the profits were realized were not enforceable under the statute of frauds, or were voidable by the agents or the purchaser with whom they contracted. Neither can the principal interpose such an objection as against the agent's right to commission or to reimbursement for his outlays, after the execution of contracts merely voidable for want of writing. Coward v. Clanton, 79 Cal. 23, 21 Pac. Rep. 359; Morrill v. Colehour, 82 Ill. 619. It is a well-established principle, which pervades the whole law of principal and agent, that the principal is bound to indemnify the agent against the consequences of all acts done by him in the execution of his agency, or in pursuance of the authority conferred upon him, when the actions or transactions are not illegal. Speaking generally, the agent has the right to be reimbursed for all his advances, expenses, and disbursements incurred in the

course of the agency, made on account of or for the benefit of his principal, when such advances, expenses, and disbursements are reasonable, and have been properly incurred and paid without misconduct on the part of the agent. If, in obeying the instructions or orders of the principal, the agent does acts which he does not know at the time to be illegal, the principal is bound to indemnify him, not only for expenses incurred, but also for damages which he may be compelled to pay to third parties. The exception to this rule is where the transaction for which the agent is employed is illegal, or contrary to good morals and public policy. Add. Cont. § 636; Story, Ag. § 339, 340, and cases cited in notes. Thus in Beach v. Branch, 57 Ga. 362, where an agent had sold cotton for account of another, and was obliged to refund the purchase money to the purchaser on account of false packing by the principal, he was allowed to recover the amount so paid from the principal.

It is another general proposition, in respect to the relation between principal and agent, that a request to undertake an agency or employment, the proper execution of which does or may involve the loss or expenditure of money on the part of the agent, operates as an implied request on the part of the principal, not only to incur such expenditure, but also as a promise to repay it. So that the employment of a broker to sell property for future delivery implies not only an undertaking to indemnify the broker in respect to the execution of his agency, but likewise implies a promise on the part of the principal to repay or reimburse him for such losses or expenditures as may become necessary or may result from the performance of his agency. Bayley v. Wilkins, 7 C. B. 886; Smith v. Lindo, 5 C. B. (N. S.) 587. Where a special contract remains executory, the plaintiff must sue upon it. When it has been fully executed according to its terms, and nothing remains to be done but the payment of the price, he may sue upon the contract or in indebitatus assumpsit, and rely upon the common counts. In either case the contract will determine the rights of the parties. Dermont v. Jones, 2 Wall. 9. These general principles have a direct application to the case under consideration upon the facts disclosed by the record.

The decision in Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. Rep. 160, cited by plaintiff in error, is not in conflict with the views above expressed, nor does that decision properly apply to the facts in this case. The judgment of the court below in that case was reversed for error in the charge of the court upon the point that the act of one partner in buying and selling grain for future delivery was binding upon the other, partner, who had not authorized, sanctioned, or known of the transactions; and for the further reason that the court permitted

proof of the custom of the Chicago exchange, when there was no evidence that the defendant below had knowledge of it. In the present case it is shown that the plaintiff in error had full knowledge of the rules and regulations of the New York Cotton Exchange, and of the course of business that had to be and would be adopted by the defendants in error in executing his orders to sell. It is further shown by the testimony that it was expressly understood and agreed in writing, under date of November 3, 1886, between the parties, at the commencement of these transactions, that, “if a call for margins (which the plaintiff in error was to put up) is not responded to promptly, there is to be no carrying on our part, (Richard H. Allen & Co.,) but that the cotton is to be closed out at our discretion;" to which agreement the plaintiff in error assented. When the cotton advanced beyond the price at which it was sold for delivery, the plaintiffs below, in pursuance of the terms of the contract with Bibb & Co., called upon the latter to put up margins covering the advance in price. This Bibb & Co. failed to do, and the demand was repeated on several occasions. While they were in default in putting up margins, Bibb & Co. gave orders to sell about 22,000 bales of cotton for future delivery. These orders R. H. Allen & Co. declined to execute until proper margins were put up on the past transactions and on the orders to sell, and so notified Bibb & Co. That firm continued in default in putting up margins, and a member of the firm of R. H. Allen & Co., on December 29, 1886, asked the defendant below for instructions about the contracts made with his firm by the plaintiffs, but Bibb refused to give any instructions, or to put up margins. He was then informed that the plaintiffs below would close out the contracts they had made for Bibb & Co., to which he made no objection or dissent, and in pursuance of this notice R. H. Allen & Co., on December 30, 1886, went into the market, and bought cotton "to cover" that which they had sold for account of B. S. Bibb & Co., and to make good their contracts. This they were required to do, both by the terms of their contracts with the parties to whom the cotton had been sold, and by the rules and regulations of the exchange, of which they were members. If they had failed "to cover," or to comply with such contracts, they would have been liable to expulsion from the exchange. The cotton which they bought "to cover" these contracts was purchased at the market price, and the difference between that price and the price of 10,000 bales previously sold for Bibb & Co. amounted to $19,273.50, which, with the plaintiff's commissions of $750, constituted their claim against B. S. Bibb & Co.. for the recovery of which the suit was brought. Under these facts, which are uncontroverted, it is clear

that the rule laid down in Irwin v. Williar has no application to this case.

In the case of Perin v. Parker, 126 Ill. 201, 211, 18 N. E. Rep. 747, where the transactions were similar to those in question here, it was said by the supreme court of Illinois: "Parker, as agent for Perin, and acting under his orders, sold the corn for Perin, and, under the rules of the board of trade and the custom of the Chicago market, he was personally bound to the purchasers on these contracts of sale. Parker and Perin were dealing with reference to such rules and such custom, with which they were both perfectly familiar. The rules of the board of trade provided that on time contracts purchasers should have the right to require of sellers ten per cent. margins, based upon the contract price of the property bought, and further security, from time to time, to the extent of any advance in the market value above said price. The price of corn had been rapidly advancing since the date of the sales. Parker either had deposited margins upon the contracts, or was liable to be called on for the ten per cent. and the additional margins by the persons to whom he had sold the corn. The evidence does not seem to disclose whether or not the purchasers had either received or called for margins. Even if they had not, yet there was an existing legal right in them to call on Parker for margins, and a legal liability upon the latter, within the next banking hour thereafter, to deposit the margins called for, and also, within that time. deposit with the secretary of the board, or the parties calling for such deposits, duplicate certificates of deposit, signed by the treasurer of the board, or an authorized bank."

This brings us to the consideration of the last assignment of error, viz. whether, under the pleadings and proofs, a judgment was properly rendered against the defendant Bibb alone, after a verdict had been given finding that Hopkins was not a partner. On this question we entertain no doubt whatever. The action was against the partnership carried on under the name of B. S. Bibb & Co., the complaint alleging that B. S. Bibb and Thomas H. Hopkins were the partners composing that firm. The proof showed, however, that Hopkins was not a partner, but only a clerk, and that the business done in the name of the firm of B. S. Bibb & Co. was that of B. S. Bibb alone. In support of this objection to the judgment against him, counsel for Bibb rely upon the case of Walker v. Insurance Co., 31 Ala. 529, 531. That was an action against three defendants as the joint owners of a steamboat. They made no objection to the complaint, but interposed a plea of the general issue. On the trial the proof showed that but two of the defendants were owners of the boat, and a verdict and judgment was accordingly rendered against those two and