Page:Federal Reporter, 1st Series, Volume 6.djvu/595

 BLAKEMORE V. HEYMAN. 683 �exchange is denied by defendant, and he reiterates these de- niais in his testimony. �The plaintifEs have failed to prove defendant's knowledge of these rules and regulations, or that he agreed to be bound by them in his dealings with plaintiffs, or that the contract between plaintiffs and defendant was to be controUed or gov- erned by them. �liideed, there is no affirmative evidence upon this subject other than the fact that the dealings were upon margins, and that defendant seemed to have recognized plaintiffs' right to call for additional margin. But, as far as I can see from the evidence, never at any time bas defendant waived his legal rights in the event he failed to put up margin as required by plaintiffs. In the absence of an agreement plaintiffs had no legal right to close out contraets on the fifteenth of April which did not mature until Juhe and July. �The Isma, rules, and regulations which govern the members of the New York cotton exchange, can have no effect upon defendant's legal rights, as he did not know of or acquiesce in them. If, however, it be conceded that defendant is bound to repay to plaintiffs ail losses which they incurred in aocord- ance with the laws and rules governing the New York cotton exchange, I should be disinclined to give judgment in favor of plaintiffs, because it is not showu they were compelled to do what they did. The parties to whom they allege they sold the cotton were Waldo & Dayton, plaintiffs' brokers, and they nowhere prove that Waldo & Dayton required of them more margin than defendant had already furnished them, nor, in- deed, that any demand for margin had been made of them, or would be made. �Plaintiffs' call for an additional margin was, as far as thia record shows, made for plaintiffs' own protection, and not because margins had been demanded of them. �In regard to a custom in New York outside of the cotton exchange, which Mr. Watts, president of the cotton ex- change, attempts to prove, it is sufficient to say that no such custom is pleaded, nor is there any evidence tending to prova defendant's knowledge of it, or that it is a well-known usage ��� �