Vol. IV.] RUMSEY V. BERRY. [No. 2 the delivery was to be at the option of the defendant, at any time during the month of May following. The plaintiffs were personally responsible for the performance of this agreement, and the defendant was on his part under obligation to furnish sufficient "margin" to secure against loss in case of a rise in wheat. This he failed to do; a considerable loss followed, and this action was commenced to recover the amount of it. 6 The liability of the defendant by the terms of the contract is not denied, but the presiding justice was requested" to instruct the jury, that said contract was merely betting upon the price of wheat during the balance of the month of April and the month of May, and therefore a wagering contract,' and therefore illegal and invalid as a foundation of the action." This instruction was refused, and the jury were instructed that the contract was valid under the laws of this state, and, in the absence of proof to the contrary, would be presumed to be valid under the laws of Illinois, where it was made. No question is here raised as to whether any fact in relation to the nature of the contract and proper for the consideration of the jury was taken from them. The request was not for instructions as to the nature and effect of a wagering contract, but that as a matter of law this was such. As the agreement was not in writing, it might have been proper for the presiding justice, had he been so requested, to have defined a wagering contract, and have left it to the jury to find whether by a fair inference from all the testimony this was within the definition. But virtually the request was that the court should decide the question as a matter of law. This was done, and nothing is now presented but simply to ascertain whether the case shows any error in that decision. Such error we fail to discover. The testimony, so far as reported, reveals nothing inconsistent with an ordinary sale of an article to be delivered in the future. While it may indeed appear a little singular and even suspicious that a man residing in Bangor, having no wheat of his own, should undertake to sell and deliver wheat in Chicago; still we cannot assume that any one has violated the law and been guilty of immoral and corrupting practices in his business transactions, without proof, even though he may ask it himself, for the purpose of being relieved from the obligation of a losing contract. Besides we utterly fail to discover any wrong on the part of the plaintiffs. Their business was a legitimate one, and, so far as appears, their connection with this transaction honest. Their profits were not to be affected by the result; their commissions were not to be increased or diminished by any contingency. It is true they were aware that the defendant at the time had no wheat. But the fact itself being immaterial, their knowledge of it is equally so. It is not only common, but perfectly legal and sometimes necessary, to contract for the sale and future delivery of an article which at the time has no existence, but which is afterwards to be purchased, raised, or manufactured. It does not appear that the defendant had any intention beyond what appears upon the face of the contract, or if he had, that the plaintiffs were cognizant of it. The mischief and illegality arises when the apparent contract is not the real one, when it is a mere cover for ulterior designs, and such as are not authorized by law. A contract for the sale and purchase Vol. IV.] RUMSEY V. BERRY. [No. 2. of wheat, to be delivered in good faith at a future time, is one thing, and is not inconsistent with the law. But such a contract entered into without an intention of having any wheat pass from one party to the other, but with an understanding that at the appointed time the purchaser is merely to receive or pay the difference between the contract and the market price, is another thing, and such as the law will not sustain. This is what is called a settling of the differences, and as such is clearly and only a betting upon the price of wheat, against public policy, and not only void, but deserving of the severest censure. This distinction is recognized in the Case of Chandler, reported in The American Law Register for May, 1874, and the Chicago Legal News of April 11, 1874, relied upon by the defendant. That case, both in the reasoning and conclusion reached, has our entire approbation, and were the facts in the case at bar the same as developed in that, we should not hesitate to apply the same principles of law. The result is, that whatever might be the conclusion properly reached from the facts applicable to the defendant alone, the case fails to show, on the part of the plaintiffs, any complicity with a wagering or illegal conExceptions overruled. APPLETON, C. J., WALTON and VIRGIN, JJ., concurred. PETERS, J., did not sit. tract. BARROWS, J., delivered the following dissenting opinion: I cannot help thinking that the opinion fails to apply the sound legal doctrine which it affirms to the facts and rulings in the case. The case finds that the plaintiffs knew that the defendant, a citizen of Bangor, had no wheat to sell, but at his request bound themselves by contract, for him, to deliver 10,000 bushels during the next month at the seller's option, at a certain price; that defendant furnished plaintiffs with $700 as a margin," but failing, though requested, to make further advances, as the price of wheat rose, they, in accordance with the custom in Chicago, cancelled the contracts at a loss of about $3,000, and brought this action to recover the difference between that sum and the $700 margin deposited. 66 If there was not enough in this to justify the defendant's request, that the presiding judge would rule as matter of law that this was a wagering contract, and illegal and void, still it seems to me very clear that its character was so suspicious that it ought to have been left to the jury, under proper instructions, to say what the true intent of the parties was. Instead of doing this, the presiding judge cut off the defence by a peremptory ruling that under such circumstances the contract would be valid. It is futile and evasive to argue that this ruling was justified, because, upon its face, the contract was a lawful one for the delivery of wheat at a future day. If it were designed and understood to be a mere gambling transaction, its terms would still be the same. The real question was, whether it was the intent and expectation of these parties that the wheat should be delivered, or whether it was that, in case of a rise, a settlement was to be made upon such terms as they could get, and in case of a fall, they were to receive the difference from the parties with whom the contract was made. Nor do I think it can be rightly said that "no question is here raised Vol. IV.] CITY OF CLEVELAND v. LENZE. [No. 2. as to whether any fact in relation to the nature of the contract, and SUPREME COURT COMMISSION OF OHIO. (To appear in 27 Ohio St.) REMOVAL OF PROHIBITED BUILDING WITHIN "FIRE LIMITS" OF CITY. 1. The owner of a wooden building, situated in a city which has, by ordinance, prohibited the erection or placing a wooden structure over ten feet high within certain prescribed boundaries, which building was erected within said limits prior to the passage of the ordinance, may lawfully move such building from one lot to another within the prescribed boundaries. 2. The owner of such building having, by the consent of the city, moved it along and upon a street to a point adjoining his lot, located within the fire boundaries, may lawfully place it upon such lot, and the city could not lawfully interfere to prevent his doing so. 3. Under circumstances that place the city in the wrong, an interference on her part so that the owner is prevented from placing the building on his lot, and in consequence, by obstructing the street, the building becomes a nuisance and is torn down, the city is liable to the owner for damages. 4. Where the building was lawfully in the street, and the owner was in the act of removing it from the street upon his own premises, and by the wrongful interference of the city with the rights of the owner, the building becomes a nuisance, an order from the police court, requiring it to be removed or torn down, will not exempt the city from liability for damages. 5. An agreement between the owner of such building and the city authority, made on the consideration that the city will permit him to tear down his own building, or that the city may tear it down without incurring a responsibility in damages, is wanting in mutuality, without consideration, and void. 6. The owner of such building having offered to make it conform in all respects to the requirements of the fire ordinance of May 10, 1854, had the right to do so, and was entitled to a reasonable time in which to perform. ERROR to the district court of Cuyahoga County. William C. Bunts, city solicitor, for plaintiff in error. John J. Carran & John M. Connell, for defendant in error. ASHBURN, J. Kasper Lenze prosecutes this action for damages; alleges that he was the owner of a certain building; that defendant caused it to be torn down; that, desiring to remove his building from the Vol. IV.] CITY OF CLEVELAND v. Lenze. [No. 2. corner of Frankfort and Seneca streets to the corner of St. Clair and Seneca, he procured a permit from defendant to do so; that whilst in the act of removing it the defendant stopped him and wrongfully and with force tore down his building; and claims that he was damaged in the following particulars: That "the defendant wrongfully and unlawfully, and with force and violence, tore down and destroyed said building, and the same became and was wholly lost to said plaintiff; whereby said plaintiff was damaged in the sum of $8,000 for the loss thereof. And the said plaintiff says he was further damaged by the said defendant, on account of the loss of said building in the preparing said building to be removed, material, labor, and moving, in the sum of $823. And the said plaintiff says he was further damaged by said defendant by its destruction of said building, in the expense he sustained for the wages of watchmen, lights, lamps, &c., during the time of moving same, to the amount of $60. And the said plaintiff says that he was further damaged by said defendant, on account of the cost and expense which defendant wrongfully forced plaintiff to pay for tearing down said building, amounting to the sum of $419. Said plaintiff says he was further damaged by defendant, in the loss and destruction of gas-pipe in said building, in the sum of $200. Said plaintiff says he was further damaged by said defendant (was forced) removing lumber, rubbish, &c., from the street where the building was torn down, in the sum of $774. Said plaintiff further says that he sustained further damage by the wrongful and unlawful destruction of said building, in the loss of rents, which he was then in the receipt of, and which thereby became and was lost to said plaintiff, in the sum of $2,700.” Defendant answered, denying specially the material allegations in the petition, and alleges the building was not moved in pursuance of a permit granted to him; that the city granted a permit to Ingham & Treat to move this building and four others through Seneca and St. Clair streets; that they were to be taken beyond or east of Erie Street on St. Clair Street; that the building was moved into Seneca Street, in pursuance of this permission to Ingham & Treat; that when the building was standing in and obstructing the travel on Seneca Street, the plaintiff agreed to take down and remove the building; and if he failed to do so, then the defendant and its agents or servants should be authorized to tear down and remove the building; that plaintiff failed to do as he agreed, and the defendant notified him, and also Ingham & Treat, to remove the building in six days, or defendant would take the necessary steps to do so; that plaintiff still neglecting to remove the building from the street, legal proceedings were commenced against him, under one of the city ordinances, for obstructing a public street; that he was adjudged guilty, fined, and an order made by the police court, ordering the captain and acting superintendent of the metropolitan force of the city to forthwith remove or tear down said building then obstructing Seneca Street; that the building was torn down, in pursuance of this order of the court, and the material placed on his lot, &c.: denies specially all damages. The plaintiff put in a reply, admitting some of the allegations in the answer-denying others; sets up some new matter, but nothing that is necessary to state in order to have an understanding of the case. A final trial in the common pleas resulted in a verdict in favor of the Vol. IV.] CITY OF CLEVELAND v. LENZE. [No. 2. defendant. Motion for new trial heard and overruled. A bill of exceptions, embodying all the testimony, filed in the case. Petition in error, prosecuted in the district court, resulted in the reversal of the judgment of the court of common pleas. To reverse this judgment of the district court a petition in error was filed in the supreme court. Errors assigned here: “I. That said court erred in holding that there was no violation of the ordinance to prevent the erection and placing of wooden buildings in designated territory within the city of Cleveland, passed by the city council of said city, on the 10th day of May, A. D. 1854, to change the location of a wooden building, which was already standing within said limits, from one point to another. “II. That said court erred in holding that the court of common pleas of Cuyahoga County erred in refusing to instruct the jury that the city was bound to give a reasonable time to make this building to comply with the ordinance of May 10, 1854, said right to be exercised by the plaintiff below in a careful and prudent manner. "III. That said court erred in holding that the court of common pleas of Cuyahoga County erred in refusing to instruct the jury that if they should be of opinion that this building was wrongfully on the street opposite the corner lot leased of Bolton, then, and in that event, there was no practical way of saving the building, except by putting it on this lot, the city had no right to tear down this building, without giving the plaintiff a reasonable chance to comply with the fire ordinance, by removing it upon this lot, and to so construct the walls and roof of this building as to comply with the ordinance of the city. "IV. That said court erred in holding that the court of common pleas of Cuyahoga County erred in charging the jury that the city had the right to rescind the permit which had been given to move the building to this lot, and, having done so, had the right to proceed under the ordinance of May 10th, 1854, to prevent the plaintiff from putting the building in question upon the lot on the corner of Seneca and St. Clair streets. "V. That said court erred in holding that said plaintiff wrongfully prohibited said defendant from placing his wooden building on the lot leased of Judge Bolton. "VI. That said court erred in holding that said defendant ought to recover damages from said plaintiff, if any were sustained by said defendant by reason of having his building torn down by an order of the police. court of the city of Cleveland, while standing on the street in front of said leased lot. "VII. That said court erred in reversing the judgment obtained by said plaintiff against said defendant in the court of common pleas of Cuyahoga County. "VIII. That said judgment in the district court was given for the said defendant, Kasper Lenze, when it ought to have been given for the said plaintiff, the city of Cleveland, according to the law of the land." The rulings of this court, upon the questions involved in this assignment of errors, appear with sufficient distinctness in the opinion. It appears in the testimony that, in 1854, the city council of Cleveland provided by ordinance that no person should erect or place any building, |