Morrissey v. Broomal. Meisen, 49 N. W. Rep. [Minn.], 862; Irwin v. Williar, 110 U. S., 499; Sprague v. Warren, 26 Neb., 326; Watte v. Wickersham, 27 Id., 457; Fareira v. Gabell, 89 Pa. St., 89; Lyon v. Culbertson, 83 Ill., 33; Roundtree v. Smith, 108 U. S., 269; Bigelow v. Benedict, 70 N. Y., 202; Hentz v. Jewell, 20 Fed. Rep., 592; Union Nat. Bank v. Carr, 15 Id., 438; Irwin v. Williar, 4 Sup. Ct. Rep., 160; Waugh v. Beck, 6 Atl. Rep. [Pa.], 923; Beadles v. McElrath, 3 S. W. Rep. [Ky.], 152; Cobb v. Prell, 15 Fed. Rep., 774; Barnard v. Backhaus, 9 N. W. Rep. [Wis.], 595; Fisher v. Bridges, 3 El. & Bl. [Eng], 641; Griffith v. Sears, 112 Pa. St., 523; Flagg v. Baldwin, 38 N. J. Eq., 218; Loury v. Dillman, 59 Wis., 197; Melchert v. American Union Telegraph Co., 3 McCrary [U. S.], 521; Bishop, Contracts, sec. 535; Oldershaw v. Knowles, 101 Ill., 117; Samuels v. Oliver, 130 Id., 84; Sampson v. Shaw, 101 Mass., 145; Raymond v. Leavitt, 46 Mich., 447; 2 Parsons, Contracts, p. 747; Nellis v. Clark, 20 Wend. [N. Y.], 24; Perkins v. Savage, 15 Id., 412; People v. Fisher, 14 Id., 9; Dixon v. Olmstead, 9 Vt., 310; Ball v. Gilbert, 12 Met. [Mass.], 397; Wheeler v. Russell, 17 Mass., 258; Hooker v. De Palos, 28 O. St., 251; Greenhood, Public Policy, p. 642; Wright v. Crabbs, 78 Ind., 487; Shaffnerr v. Pinchback, 133 Ill., 410; Cappell v. Hall, 7 Wall. [U. S.], 558.) Lamb, Ricketts & Wilson, contra: It is discretionary with the trial court to call to its aid a jury on issues of fact in an equity cause. (Wilson v. Riddle, 8 Sup. Ct. Rep., 255; Fishburne v. Furguson's Heirs, 4 S. E. Rep. [Va.], 575; De Witt v. Barly, 17 N. Y., 350.) A defendant, in an equity case, who voluntarily pleads a counter-claim involving legal issues is not thereby entitled to a jury trial as a matter of right. (Installment Building & Loan Co. v. Wentworth, 25 Pac. Rep. [Wash.], 298; Ryman v. Lynch, 41 N. W. Rep. [Ia.], 320; Gormley v. Clark, 134 U. S., 338; Martin v. Martin, 24 Pac. Rep. [Kan.], 418; Morrissey v. Broomal. Wilson v. Johnson, 43 N. W. Rep. [Wis.], 148; Espenhain v. Steinkirchner, Id., 158; Dohle v. Omaha Foundry & Machine Co., 15 Neb., 437.) Right to jury trial on issue raised by counter-claim in equity suits is not guarantied by constitution. (Chapman v. Robertson, 6 Paige Ch. [N. Y.], 627; Jennings v. Webster, 8 Id., 503*; MacKellar v. Rogers, 17 N. E. Rep. [N. Y.], 350.) Where a court of equity once obtains jurisdiction it will retain it for the purpose of doing complete justice between the parties, although rights at law are involved. (1 Pom., Equity Jurisprudence, 181; Ryman v. Lynch, 41 N. W. Rep. [Ia.], 320; Van Rensselaer v. Van Rensselaer, 113 N. Y., 207; Martin v. Martin, 24 Pac. Rep. [Kan.], 418; Haynes v. Whitsett, 22 Id. [Ore.], 1072.) If any part of the case is exclusively of equitable cognizance a jury trial will be refused. (Towns v. Smith, 16 N. E. Rep. [Ind.], 812; Quarl v. Abbott, 1 Id., 482.) Demand for a jury trial not confined to law issues is properly denied. (Lace v. Fixen, 38 N. W. Rep. [Minn.], 762; Greenleaf v. Egan, 15 Id., 254.) When the right to terminate a contract on notice is reserved in the contract it will be enforced by the courts. (Fitzgerald v. Allen, 128 Mass., 232; Ireland v. Dick, 18 Atl. Rep. [Pa.], 735; Crescent Mfg. Co. v. Nelson Mfg. Co., 13 S. W. Rep. [Mo.], 503; Fitzpatrick v. Woodruff, 96 N. Y., 561; Balen v. Mercier, 42 N. W. Rep. [Mich.], 667; Henderson Bridge Co. v. O'Connor, 11 S. W. Rep. [Ky.], 18; Patrick v. Richmond & D. R. Co., 93 N. Car., 422; Thayer v. Allison, 109 Ill., 180.) A contract between a commission merchant and a grain buyer for a loan of money from the former with which to buy and store grain, which provides that the latter shall sell the grain for future delivery through the former, for which a commission is paid, will not make the contract usurious, although commissions and interest reserved exceed the highest lawful rate, unless it clearly appears that the contract was a cover for a usurious transaction. (Matthews v. Coe, 70 N. Y., 242; Cockle v. Morrissey v. Broomal. Flack, 93 U. S., 344; Virginia & T. R. Co. v. Campbell, 22 Va., 438; Hollis v. Swift, 74 Ga., 595; Callaway v. Butler, 7 S. E. Rep. [Ga.], 224; White v. Guilmartin, 10 Id. 444; Woolsey v. Jones, 4 So. Rep. [Ala.], 190; De Forest v. Strong, 8 Conn., 513; Beckwith v. Windsor Mfg. Co., 14 Id., 594.) When the promise to pay a sum above legal interest depends upon a contingency, the contract is not usurious. (Spain v. Hamilton, 1 Wall. [U. S.], 604; Truby v. Mosgrove, 11 Atl. Rep. [Pa.], 806; Philadelphia & R. R. Co. v. Stichter, 11 W. N. Cas. [Pa.], 325.) An agreement to sell grain for future delivery is not a gambling contract. (Pixley v. Boynton, 79 Ill., 351; Sanborn v. Benedict, 78 Id., 309; White v. Barber, 123 U. S., 392; Sawyer v. Taggart, 14 Bush [Ky.], 727; Gregory v. Wendell, 39 Mich., 337; Whitesides v. Hunt, 97 Ind., 191; Irwin v. Williar, 110 U. S., 499; Bibb v. Allen, 149 Id., 481.) This is true, though the seller has not the grain on hand but relies upon purchasing it in the open market to supply his sale. (Bibb v. Allen, 149 U. S., 481; Gregory v. Wendell, 39 Mich., 337; Clarke v. Foss, 7 Biss. [U. S.], 540; Porter v. Viets, 1 Id., 177.) A construction consistent with the validity of a contract is preferred. (Wing v. Glick, 56 Ia., 473; Bigelow v. Benedict, 70 N. Y., 202; Story v. Solomon, 71 Id., 420; Clay v. Allen, 63 Miss., 426; Wharton, Contracts, sec. 337.) The burden of proof is upon him who contends that a contract was intended as a cover for wagering transactions. (Crawford v. Spencer, 4 8. W. Rep. [Mo.], 713; Dykers v. Townsend, 24 N. Y., 57; Mohr v. Miesen, 49 N. W. Rep. [Minn.], 862; Benson v. Morgan, 26 Ill. App. Ct. 22.) The intention must be mutual and contemporaneous with the agreement to make a contract a cover for wagering transactions. (Lehman v. Feld, 37 Fed. Rep., 856; Irwin v. Williar, 110 U. S., 499; Gregory v. Wendell, 39 Mich., 337; Beveridge v. Hewitt, 8 Bradw. [Ill.], 467; Clarke v. Foss, 7 Biss. [U. S.], 540; Bartlett v. Smith, 13 Fed. Rep., 263; Gregory v. Wendell, 40 Morrissey v. Broomal. Mich., 432; Murry v. Ocheltree, 59 Ia., 435; First Nat. Bank of Lyons v. Oskaloosa Packing Co., 23 N. W. Rep. [Ia.], 255; Kent v. Miltenberger, 13 Mo. App., 503; Melchert v. American Union Telegraph Co., 11 Fed. Rep., 193; Gilbert v. Gaugar, 8 Biss. [U. S.], 214; Fareira v. Gabell, 89 Pa. St., 89; State v. Carroll, 6 Mo. App., 263; Roundtree v. Smith, 108 U. S., 269.) The deposit of margins to protect a sale or purchase against the fluctuations of the market is no evidence of a gambling transaction. (Gruman v. Smith, 81 N. Y., 25; McGinnis v. Smythe, 4 N. E. Rep. [N. Y.], 759; Gregory v. Wendell, 39 Mich., 337.) The sale on the board of trade of grain in store, although extended from month to month, and, in fact, never delivered, is not to be construed a gambling transaction. (Douglas v. Smith, 38 N. W. Rep. [Ia.], 163.) In a contract which is not as a whole illegal and is severable, that which is legal will be sustained, while that which is illegal will be rejected. (Wharton, Contracts, sec. 338; Anderson v. Powell, 44 Ia., 20.) RAGAN, C. March 1, 1889, appellant was a grain dealer in Nebraska and appellees were commission merchants in Chicago, Illinois. These parties entered into a written contract bearing said date, in words and figures as follows: "This agreement, made this first day of March, 1889, by and between Wanzer & Co., of Chicago, Illinois, of the first part, and J. C. Morrissey, of Lincoln, Nebraska, of the second part, witnesseth as follows: Wanzer & Co. agree to loan to said Morrissey a sum not exceeding thirty thousand dollars, to be used in the purchase of corn and other grain, seeds, etc., in the state of Nebraska; the rate of interest on the same to be seven per cent per annum, to be charged monthly as said Morrissey's indebtedness may appear. Said Morrissey agrees to give his promissory notes at thirty, sixty, and ninety days, to be renewed from Morrissey v. Broomal. time to time as may be necessary, for the entire sum so loaned, together with crib or warehouse receipts representing all the grain purchased with such funds, or other grain or produce of fully equal value. Said Morrissey further agrees to sell through said Wanzer & Co., for future delivery in the Chicago market, corn equal to the amount of ear corn purchased with funds furnished by Wanzer & Co., which sales may be changed from month to month as may be directed by said Morrissey. For the purchase and sale of this grain said Morrissey agrees to pay Wanzer & Co. onesixteenth of one cent per bushel per month on all corn on hand at the close of each and every month, which shall cover the charge of changing from month to month; and; if purchases and sales of this character are made in any month in excess of the amount of corn on hand, the charge of such purchase and sale, or sale and purchase, shall also be one-sixteenth of one cent per bushel. Said Morrissey agrees to ship to Wanzer & Co. all grain, seeds, and other produce purchased by him, Wanzer & Co. to sell same in the Chicago market in such manner as in their judgment shall best serve the interests of said Morrissey, and the commission charge for such service shall be one-half cent per bushel for corn, and for all other grain or produce onehalf the rates provided for by the rules of the Chicago board of trade for the shipment of non-members of said board of trade; provided, however, that said Morrissey shall have the privilege of selling such grain on track or of shipping it to other markets, having first obtained the written consent of said Wanzer & Co.; said Morrissey to pay to Wanzer & Co. the sum of $2 per car on every car of grain, or seed, or produce shipped by him or his agents during the life of this contract, and not handled by said Wanzer & Co., which $2 per car shall be in lieu of the one-half cent per bushel above provided for. Said Morrissey shall make a full statement at the close of each calendar month of the amount of grain on hand and the amount of grain |