He claimed that in order to effect collections he | per cent upon Mason's share of fees, as an exhave disputed he should have ascertained thel amount due and tendered it without prejudice to a dispute concerning other items. Interest is allowed both at law and equity upon money due. As said by this court in Curtis v. Innerarity, 47 U. S. 6 How. 146, 154 [12: 380, 384], considering and overruling an exception to an allowance of interest from the time certain payments had become due: had expended for Clerk hire...... Total.......... 2,540 00 pense for collection, the auditor said: $15,608 24 .... 6,375 00 5,959 18 "Some of these expenses were incurred in unsuccessful endeavors to secure fees, and before his interest in fees collected can be charged with expenses connected with fees not collected it should appear that he assented to such expenditures, or at least had knowledge of them. Neither of these conditions is shown to exist here. ... 2,565 78 $33,048 20 The alleged expenses thus amounted to ex393] actly 20 per cent *of the gross amount of fees collected, whereas the answer claimed but 10 per cent. The unreliable character of the testimony as to these items of expenditure is illustrated by counsel for appellee in his brief. On cross examination of Mr. Spalding as to an expense account filed May 22, 1889, he testified that he had disbursed the following amounts: Statement made at session May 22, 1889. Half of postage from March 3, 1883, to January 1, 1884-- Half of postage in 1884 1,000 00 $ 750 00 1,000 00 .. 1,500 00 750 00 1,000 00 2,565 78 5 months, 1889----- ..... Add miscellaneous expenses....... 375 00 394] *The contract, did not contemplate a necessity for expenditures in connection with the collection of fees, as, on June 3, 1880, it was believed that drafts for the amounts of the difference claimed would be delivered to Spalding as attorney for the claimants, and that he would make his deduction of fees therefrom. For this reason, the auditor reached the conclusion that Mason's interest should be charged with its just share of expenses necessary and reasonably incurred in securing and realizing the fees of which he was to receive a share with the qualification that perhaps before any considerable amount of such expenses had been incurred the complainant should have been notified. Complainant does not find fault with deductions actually allowed. Concerning, however, the claim for an allowance of 20 We find no obvious error in this conclusion. Where an allowance is asked which is clearly excessive and exorbitant, it is for the party claiming to be entitled to establish just what is the amount he is properly entitled to, and it is not made the duty of the court or its officers to arbitrarily guess at the amount. The 12th assignment alleges error in the allowance by *the general term, in its final [395 decree, of interest upon the entire principal sum found due from August 9, 1887. The contract of June 3, 1880, provided that "all the fees collected by the said Spalding shall be accounted for and settlements shall be made from time to time as collections are made, and the divisions thereof shall be made, three fourths going to said Spalding and one fourth to said Mason." The auditor made monthly rests in the collection of fees, and allowed interest on all collections during a particular month from the first day of the succeeding month. The special term entered a decree in accordance with that method. The general term, however, sustained the exception to the auditor's allowance of interest, and modified the decree of the special term in that particular by allowing interest on the entire principal sum found due by the auditor from the time when complainant made his demand upon Spalding for an account as to the fees collected. Spalding's failure, prior to August 9, 1887, to render an account and make settlements for collections of fees, is shown by the evidence of Mason to have been acquiesced in by him. The general term therefore correctly held that interest should run only from the date when the demand for an accounting was made, and the right of complainant thereto was denied. 396] *"It is a dictate of natural justice and the law of every civilized country that a man is 1. Where there was a motion to direct a verdict, bound in equity, not only to perform his en gagements, but also to repair all the damages that accrue naturally from their breach. .. his contract, he must pay the established and both parties therefore agreed to submit the issues of fact to the jury, it must be assumed that there was sufficient evidence to warrant the court in permitting the jury to decide upon the evidence, where the record does not purport to contain all of it. rate of interest as damages for his nonperform- 2. The rules and regulations of a board of trade ance. Hence it may correctly be said that such is the implied contract of the parties." It is no hardship for one who has had the use of money owing to another to be required 3. Introducing testimony after a motion to direct to pay interest thereon from the time when the payment should have been made. Crescent Min. Co. v. Wasatch Min. Co. 151 U. S. 317, 323 [38: 177, 179]. 4. An instruction to the effect that the precise meaning of a certain term used in evidence has not been clearly shown, and making a mere comment upon the evidence, is not erroneous, as it could not have operated to prevent the jury giving such weight as they saw fit to the testimony on the subject. right to the interest upon what was really due. 5. When all the evidence is not shown to be con are competent evidence in a case involving liability on a contract which was made subject to such rules. a verdict is a waiver of an exception to the refusal of such direction. The circumstance that the complainant may have considered himself entitled to an account and to receive a greater sum than was actually found to be due does not affect complainant's Sturm v. Boker, 150 U. S. 312, 341 [37:1093, 1104]. In the case just cited, while the right to an account was sustained, it was held that tained in the record, it must be assumed that there was evidence in the case tending to support a theory of the case stated by the court. a portion of the matters claimed by complain- A. The unauthorized voluntary act of a broker in ant could not be allowed on a final account ing, but it was directed that the account should be stated up to the filing of the bill, and that any balance shown in favor of either side should bear interest from that date. making a purchase is not ratified by his principal by mere retention without complaint of an account and statement showing that the purchase had been made. The general term, however, erred in its direction on the subject of interest. It overlooked the fact that some of the fees for which a recovery was allowed, amounting to $4.735.06, were collected after August, 1887. The dates of the collections made after that date are shown by the record, and an allowance of an average of interest will correct the error. This completes our consideration of the specific assignments of error. The general assignment that the court erred in not dismissing the bill of complaint with costs is shown to be without merit by what we have already stated. The error in respect to interest necessitates a modification of the decree under review. As it is a matter, however, of mere interest, not affecting the real merits of the controversy, and which we think would have been corrected 397] by the lower court *had its attention been called to it, the costs of this appeal must be borne by appellants. It is therefore ordered that the judgment of the supreme court of the District of Columbia be and is hereby modified by providing that of the principal sum due, $8,934.05 shall bear interest from August 9, 1887, and $4,735.06 shall bear interest from August 2, 1888, and as thus modified the judgment is affirmed at the costs of appellants. Mr. Justice Gray dissents. 7. It is proper to permit the party in whose favor a verdict or judgment has been returned or entered, in order to avoid the granting of a new trial on account of error affecting only a part thereof, to enter a remittitur as to such erroneous part, when the court can clearly distinguish and separate the same. [No. 113.] Argued December 11, 12, 1895. Decided March 2, 1896. IN ERROR to the Circuit Court of the to review a judgment of that court in favor of plaintiffs, James E. Boyd et al., against defendant, Theodore Hansen, for the recovery of payments made for account of defendant in the purchase and sale of grain in Chicago, and for services rendered therein. Affirmed on filing a remittitur of part of the judgment; if remittitur be not filed, then the judgment reversed. See same case below, 41 Fed. Rep. 174. NOTE.-That ratification proves agency, see note to Bank of United States v. Dandridge, 6: 552. That ratification binds principal if made with knowledge of all the facts; assent presumed if dissent not made within reasonable time after notice.see note to Parsons v. Armor, 7: 726. That ratification of unauthorized act of agent discharges agent's liability, but not unless made with knowledge of all the facts, see note to Owings v. Hull, 9:246, Statement by Mr. Justice White: The action below was instituted by defendants in error to recover from plaintiff in error the amount of payments alleged to have been made for account of defendant, between the 24th day of August, 1888, and the 8th day of June, 1889, and resulting from the purchase and sale of certain grain made for account of the defendant, in the city of Chicago, and also the value of services rendered in connection therewith. Defendant pleaded that the plaintiffs did not purchase or sell any grain for his account, but that the transactions in question were mere wagering contracts intended by both as gambling upon the price of wheat, and that the moneys expended by the plaintiffs on account of the matters sued for were advanced at the city of Chicago in paying for wheat options and "futures;" that the services alleged to have been rendered were performed in connection with such illegal transactions, which, it was averred, were in violation of the statutes of the state of Illinois. Plaintiffs filed a reply to the answer of defendant, denying that it was the understanding and agreement of the parties that there were to be no actual sales or delivery of wheat, and that settlements were to be made by one party paying to the other the difference in values between the contract price and the market price of the wheat bought, according 399] to *fluctuations in the market, and also denied generally all the allegations in the answer to the effect that the transactions were gambling contracts and in violation of law. tified that he supposed the transactions were to be conducted for him on the Board of Trade at Chicago by Boyd & Bro., but claimed that at none of the interviews between himself and Handy was any allusion made to the Board of Trade or the rules of the Board of Trade. He also testified that it was not his intention to buy or seil any *grain on any of the orders [400 given to Handy, but that he contemplated mere speculations on margins. Handy, however, testified that when the first order was given he told Hansen that the commission would be of a cent per bushel; that he would have to abide by the rules of the Chicago Board of Trade, and stated that he informed Mr. Hansen what those rules were as concerned the handling of grain on that board, and also informed him that a delivery was contemplated in every trade, either by buyer or seller, which was understood by Hansen; that in case wheat was delivered he must take care of it, and pay the purchase price and interest on the money, etc. The first order to purchase was given August 10, 1888, and from that time until about April, 1889, occasional orders to buy and sell wheat were given. In none of the transactions was wheat offered or furnished by Hansen or to him personally, but the purchases and sales were all made on the Chicago Board of Trade according to the rules of that board. Hansen became delinquent in the furnishing of margins on his contract. On April 16, 1889, 40,000 bushels of May wheat were bought on his account at prices ranging from 109 to 1114. On April 26 and 29 following, by telegrams, and about those dates, by personal solicitation of Handy, Boyd, & Bro. requested authority to "transfer," as they expressed it, the May wheat to June wheat. Hansen did not answer the telegrams, and gave no satisfactory response to the verbal inquiry. On April 29, however, Boyd & Bro. sold the 40,000 bushels of May wheat, on which Hansen was then in default for margins, at 814, and the loss of $11,500 was charged against Hansen in his account on the books of Boyd & Bro. The firm then bought 40,000 bushels of June wheat at 824, and sent a memorandum notice of the sale of the May wheat and the purchase of the June wheat to Hansen, together with an account of the loss sustained on the May wheat. On May 4, 1889, Boyd's The cause was tried by a jury, and the following facts are shown by so much of the evidence as is contained in the bill of exceptions. On and prior to August 24, 1888, plaintiffs were partners in business at Chicago under the firm name of James E. Boyd & Bro., and were members of, and commission merchants doing business on, the Board of Trade in that city. They had a branch office at Minneapolis, Minnesota, at which Charles E. Handy was their agent from January 1, 1887, to February 1, 1859, Handy being succeeded on the latter date by George M. Brush. Prior and subsequently to 188, Theodore Hansen resided at Bensen, Minnesota, a town on the Great Northern Railway, about 120 miles west of Minneapolis, agent, Brush, wrote Hansen that Boyd & Bro. being engaged there in the business of general merchandise and grain, owning and operating a grain elevator and warehouse. Prior to the transactions between Boyd & Bro., hereinafter mentioned, Hansen had sold wheat through brokers on the Board of Trade at Chicago and the Chamber of Commerce at Minneapolis, and had had some "option deals," as he expressed it, and was generally familiar with the manner in which business was done on those boards. Early in August, 1888, as a result of a conversation had with Boyd & Bro.'s Minneapolis agent, a few days previously, Hansen called at Handy's office and gave him an order for the purchase of 5,000 bushels of December wheat. Defendant claimed that in the prior conversa tion Handy had alluded to losses which Hansen bad sustained in "some trades" about a year prior thereto, and said "he thought it was a good chance to make something back this fall by making some scalps." Hansen further tes demanded an immediate settlement of his account. Personal interviews with Brush and correspondence with Boyd & Bro. followed. On June 8, 1889, the then open contracts on the books of Boyd & *Bro. with Hansen were [401 closed, and the 40,000 bushels of June delivery wheat, above referred to, were sold on the Board of Trade, and the loss, $1,300 and $50 commission on the transaction, was charged against Hansen. A day or two following an account exhibiting the total indebtedness of Hansen to Boyd & Bro. ($18,248.36) was delivered to Hansen and payment thereof demanded, which was refused, and the next day this action was brought. There was no controversy at the trial as to the correctness of any of the items of the account, other than as to the legality or illegality of the transactions, with the exception of the loss resulting from the 40,000 bushels of June wheat, asserted by Boyd & Bro. to have been purchased by authority of Hansen, but which Hansen claimed he had never authorized, and hence should not be held liable for the loss thereon, nor for the commission charged. As to all the items of the account, plaintiffs contended that the transactions were legitimate purchases and sales of wheat under the rules of the Chicago Board of Trade; that deliveries were intended by the parties to the contracts on the Board of Trade; that Boyd & Bro. and Hansen understood that actual purchases and deliveries of wheat were intended. On the other hand, Hansen claimed that no actual purchases or sales of wheat were agreed to be made or were intended, and that the orders given by him were mere wagers upon the price of wheatdeals in futures upon the rise and fall in prices of wheat, according to the quotations on the Chicago Board of Trade. The court instructed the jury very fully as to the law of the case upon the differing contentions of the parties, and the defendant took seven exceptions to the charge of the court. But one instruction was asked on behalf of defendant, and that was given to the jury. It was as follows: "If you should believe that it was the intention of both parties to this contract that no actual wheat was sold or delivered or intended to be delivered at a future time, and if you should find from the evidence that it was not the intention of either party that a contract should be made by plaintiffs to buy and hold wheat for delivery to the defendant, but that 402] *it was the real intention and the understanding of the parties that a contract should be made which should be closed at a future date, not by the delivery of the wheat and the pay ment of the purchase price, but by the payment of money to one party or the other, the parties to receive the same and the amount to be paid to be determined upon a basis of the difference between the agreed purchase price at the time the purchases were made and the actual market value of the wheat on the day when the contracts were closed, then the jury are instructed that such contracts are illegal in law and void, and you will find for the defendant." A verdict was returned for the full amount claimed by plaintiffs. Judgment was entered thereon, and the court overruled a motion for a new trial. The case was then brought to this court by writ of error. Mr. Justice White 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 [403 evidence in the case. Moreover, the bill of exceptions filed in the record does not purport to contain all the evidence. The 2d, 3d, 4th, and 5th 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 [37: 819, 823]. The oral testimony of Boyd tended to explain the purport of those rules and the transactions thereunder, and was consequently relevant. The 6th 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 7 to 15 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 [38: 694]. Assignment 7 asserts that the court erred in giving the following instruction: "The time during which these transactions occurred commenced in August, 1888, and were 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 in- [404 quired of the manager the commission to be charged, and was informed of the rate, and 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 defense." In his brief. counsel for plaintiff in error asserts that the charge misled the jury, and, in effect, with drew 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 sales and purchases were to be made on the Chicago Board of Trade with the members thereof; that such contracts were to be gov. erned by the rules and usages of such Chamber of Commerce, and that in every instance actual delivery of wheat was intended by the parties to the contracts made for the defendant's account, and that these contracts were closed and settled up by the plaintiffs in accordance with these terms, and at the defendant's *request, and advances were made [406 and their own money paid out for his benefit. "11. All optional contracts, however, are not illegal under the statute which was read to you. If the option is to sell or purchase at a future time, then it is illegal and a wager; but if the option consists merely of a delivery within a specified time, the contract is valid, and what was done by putting up margins amounts to nothing unless the contract itself is illegal. The validity of an option contract depends upon the mutual intention of the pretty hard then, but he thought it was a good parties thereto, and if a sale or purchase of 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 sellas quick as you see a profit, and when you have a loss close it out at any amount.' ' A scalp means a short deal.' a "The meaning of the word is not fully disclosed by this testimony, nor is it revealed by the 405] answer to a question of the court, when the witness, in substance, said that an example of a 'scalp' was when dealer, having previously bought bought wheat to be delivered in May, sold the same quantity to be delivered the same mouth and settled his deals before May." In view of the evidence contained in the record and referred to in the opinion of the trial judge, there was no substantial error committed in the portion of charge now under review. The language of the court could not reasonably be understood by the jury as meaning more than that the court was of opinion that the precise meaning of the term in question had not been clearly shown by the evidence. The observations, however, of the court were mere comment upon the evidence and were evidently not intended, and we do not think could have operated, to prevent the jury giving such weight as they saw fit to the explanatory testimony on the subject. Assignments 8, 10, 11, and 12 may be considered together. They allege error in the following portions of the charge: "8. It is claimed on the part of the plaintiffs that defendant was informed of the rate of commission for their services; that the contracts made for him would be subject to the rules, usages, and regulations of the Chamber of Commerce of the city of Chicago, and that in all cases actual wheat must be purchased and sold, and the margins kept up to protect them against loss." "10. The plaintiffs' theory is, and evidence has been introduced tending to sustain it, that they were employed by defendant, through the Minneapolis office, as brokers and commission merchants, to purchase or sell wheat, for future delivery, on his account, and that such 161 U. S. U. S., Воок 40. 47 actual wheat for future delivery is intended, it is valid. If the contract is lawful, the putting up of margins to cover losses which might accrue from fluctuations in prices in final settlement of the transactions, according to the rules and usages of the Board of Trade of the city of Chicago, is entirely proper and legitimate. These rules have been read to you by counsel for plaintiffs, and there is nothing in these rules on their face that indicates that they are in violation of the laws of Illinois or contrary to public policy. 12. Courts, however, must recognize from necessity the methods of carrying on business at the present day, and apply well-settled principles of the common law to enforce contracts, unless they are forbidden by statute or violate some rule of public policy. The daily mercantile business of the country, mercantile deals-and by that I mean the sale and purchase of personal property-could not be successfully carried on if merchants and dealers were unable to sell something which they did not have, but which they intended to get in the market and buy before the day of delivery. A trader has a right to sell, to deliver at some future time, that which he then has not, but which he expects to go into the market and buy; and the parties may agree mutually that there need not be a present delivery, but that such delivery may take place at some other time. Such future-delivery contracts, however, must be in good faith; there must be an intention to make an actual sale and delivery of the article dealt in." The sole objection made upon the argument to these several instructions was, in substance, that under the evidence in the *case the [407 court was not warranted in assuming, or the jury in finding, that the transactions between Boyd & Bro. and Hansen might be valid. Obviously, however, such an objection cannot prevail in the absence of a motion on behalf of defendant at the close of the whole evidence for an instruction in his favor. Nor, if such motion had been made, could wereview a ruling upon it in the condition of the record in this case, as the bill of exceptions does not purport to con tain all the evidence. Assignment No. 13 covers instructions in 749 |