Morrissey v. Broomal. erty under his control, he has a right to sell it to be delivered at a future time." (Sanborn v. Benedict, 78 Ill., 309.) "A purchase of grain at a certain price per bushel, made in good faith, to be delivered in the future, is not an illegal or gambling contract." (Pixley v. Boynton, 79 Ill., 351; Irwin v. Williar, 110 U. S., 499.) "The validity of 'option' contracts depends upon the mutual intention of the parties. If it is not the intention in making the contract that any property shall be delivered or paid for, but that fictitious sales shall be settled on differences, the contract is illegal; but if it is the good faith intention of the seller to deliver, or the buyer to pay, and the option consists merely in the time of the delivery, within a given time, the contract is valid and the putting up of margins to cover losses which may accrue from fluctuations of the price is legitimate and proper." (Union National Bank of Chicago v. Carr, 15 Fed. Rep., 438, cited in Whitesides v. Hunt, 97 Ind., 191.) "A bona fide contract for the actual sale of grain, deliverable within a specified future month, * is not a gambling contract." (White v. Barber, 123 U. S., 392.) "Contracts for future delivery of personal property which the vendor does not own or possess, but expects to obtain by purchase or otherwise, are valid, if at the time of making the contract an actual transfer of the property is contemplated by at least one of the parties to the transaction." (Bibb v. Allen, 149 U. S., 481.) It seems settled from the foregoing authorities that this agreement to sell grain for future delivery is not, on its face, a gambling contract. * The substance of the second quotation is that the appellant agreed to pay interest on all sums of money appellees might advance for him as margins on transactions in his behalf. What transactions? Gambling transactions? We do not think such is a fair construction of the language of this instrument. Where a contract is capable of two constructions, the one making it valid and the other void, Morrissey v. Broomal. the law will adopt the construction that upholds the contract. (Wharton, Contracts, sec. 337.) To say that this clause shows that the intention of the parties to the contract was to engage in gambling transactions in grain under it would be a forced construction of the language. "A contract for the sale of grain for future delivery being legal, it logically follows that the agreement of the appellant to pay interest on moneys advanced for him by the appellees to protect these sales against the fluctuations of the market did not taint the contract with the vice of gambling." (Gruman v. Smith, 81 N. Y., 25; Gregory v. Wendell, 39 Mich., 337.) In Rudolf v. Winters, 7 Neb., 125, this court said: "A contract to operate in grain options, to be adjusted according to differences in the market value thereof, is a contract for a gambling transaction, which the law will not tolerate." We adhere to that decision. (To the same effect, see Embrey v. Jemison, 131 U. S., 336; Sprague v. Warren, 26 Neb., 326; Watte v. Wickersham, 27 Id., 457.) But the contract we are considering does not come within the rule laid down by those cases. The true question here is from the terms of this contract, what was the intention of the parties thereto? Was their intention to buy and sell grain upon the market, and settle the differences without any delivery? If so, the contract was a gambling one, and void. But to render a contract invalid it must appear, either from the instrument itself or from the evidence outside, that at the time of its execution the mutual intent of the parties was that no deliveries of grain should be made under it, but the difference in the price paid. We are of the opinion that this contract, on its face, cannot be held a gambling one. But appellant insists that if this agreement cannot be construed from its text to be a gambling contract, such facts nevertheless appear of evidence. We cannot quote all the testimony to this point. The appellees testified that they had no intention by entering into this contract to speculate or gamble in the price of grain. Morrissey v. Broomal. The appellant testified as follows: Q. (By the court.) What do you mean by "selling for future delivery"? A. I will explain that to your honor. We in the grain business build cribs and elevators for the purpose of getting storage out of our grain. We buy the grain from the farmer in November and December and January, during the winter months, when there are good storage charges. The winter storage is generally about four cents from December until May. * * * Now, when a man takes and fills a crib up in November he has money to pay for it he has money to pay for it in the bank, and he don't ship it out but puts it in the crib, and fills the cribs up; and as he fills the crib he wires a commission house in Chicago: "Sell 5,000 bushels March delivery against my actual corn in crib." Q. Then he actually intends to deliver that corn? Q. Is that a gambling contract? A. That is not a gambling contract when you sell corn in crib for future delivery, when you have the actual corn. Q. Was there anything of that kind in this contract between you and Wanzer & Co.? A. I don't think there was any gambling any different from selling against the corn which was being held in cribs. Q. Anything in the contract? A. Not on my part, any other intention than that I went into this contract for to get the storage charges. I had money enough to run this business. The object was to put the corn in store, and get the winter storage on it; that was the inducement for going into that contract. * The record also shows that the appellant, from time to time, sold for future delivery as much grain as he had on hand, and when the time arrived to make delivery, instead of shipping the grain he had in the cribs, he would buy grain on the market to fill or offset the sales made, and re Morrissey v. Broomal. sell the grain on hand for a future delivery. These transactions, or rather the record of them, would make it falsely appear that the appellant sold very much more corn than he ever paid for during the time of the transactions; and it is this feature of the dealings of the parties that appellant's counsel claims establishes by the acts of the parties to the contract under it a gambling character. But we think this is not a fair deduction from the evidence. It shows that all these sales and purchases of appellant on the market were based on grain he had on hand, and that this selling and buying on the market was not dealing in options, not betting on the rise and fall of the market, but purchases made to fill sales he had previously made, and thus obviated the necessity of delivery of the grain he had in his cribs in Nebraska. The case of Douglas v. Smith, 74 Ia., 468, is one in which the facts were substantially the same as in the case at bar, and that court said: "Where country grain buyers had a large quantity of corn in cribs, and they made sales from time to time through Chicago commission merchants for future delivery of No. 2 corn, but fearing that their corn would not grade No. 2, and hoping that it would improve with age, they bought in and resold, intending to deliver the corn to cover their sales, held, that the transactions' were not illegal so as to defeat their brokers in the collections of margins advanced for them." The facts in this case bring the transactions of the parties within the operation of the decisions of the case last above cited. The preponderance of the testimony establishes the fact that the sales made by the appellant were not wagers but that the grain was to be actually delivered at the time agreed upon. The decree of the district court is right and the same is in all things AFFIRMED. THE other commissioners concur. Taylor v. State. JOHN TAYLOR V. STATE OF NEBRASKA. FILED OCTOBER 4, 1893. No. 4461. 1. Homicide: CONFESSIONS: EVIDENCE. 2. A confession receivable in evidence, only after proof that it was made voluntarily, is restricted to an acknowledgment of the defendant's guilt, and the word does not apply to a statement made by the defendant of facts which tend to establish his guilt. ADMISSIBILITY. : FACTS DISCOVERED BY CONFESSIONS: Any circumstance tending to establish the prisoner's guilt may be proved, although it was brought to light by an admission of the prisoner, inadmissible of itself as having been obtained by improper influence. ERROR to the district court for Lancaster county. Tried below before CHAPMAN, J. E. P. Holmes and Charles E. Magoon, for plaintiff in error: It was error to overrule the motion to strike out the sheriff's testimony. The confession was inadmissible. (3 Russell, Crimes [9th Am. ed.], 367; Kelly v. State, 72 Ala., 244; Redd v. State, 69 Id., 255; Young v. State, 68 Id., 569; Commonwealth v. Knapp, 9 Pick. [Mass.], 496; Queen v. Doherty, 13 Cox C. C. [Eng.], 23; Reg. v. Bate, 11 Id. [Eng.], 686; Reg. v. Warringham, 2 Den: C. C. [Eng.], 447; Sherrington's Case, 2 Lew. C. C. [Eng.], 123; Commonwealth v. Tuckerman, 10 Gray [Mass.], 173; Commonwealth v. Curtis, 97 Mass., 578; Commonwealth v. Taylor, 5 Cush. [Mass.], 610; Kennon v. State, 11 Tex. App., 356; Hopt v. Utah, 110 U. S., 574.) There seems to have been an attempt to distinguish a difference between the alleged confession and what was said by the prisoner about the disposition of the gun. No difference, however, does exist, for the conversation is one and the same. The sheriff ought not to have been allowed to testify to the efforts made by the prisoner, under his direction, to find the gun, |