The language of the cases is nearly uniform that what is requisite in order to invalidate a contract which provides in terms for the purchase or sale of stock or produce is that the parties intend or contemplate a settlement of differences instead of actual deliveries. In most speculative contracts made through brokers both customer and broker must certainly expect that transactions will be closed by the payment of differences, but they recognize the possibility of either party calling upon the other for actual performance. Though they may know that it will be wholly impossible for the customer actually to carry out all of the transactions which he has ordered they also recognize that he may call for actual performance of some of them at least, and those if any that may thus be performed are undetermined when the transactions are ordered.
Where the validity of a contract depends on the intent of the parties, undoubtedly if they agree to settlement by payment of differences, this will make their contract invalid. How far a mutual intention or expectation which falls short of an actual agreement produces the same effect is somewhat troublesome. The Massachusetts court has said: "If, however, it is agreed by the parties that the contract shall be performed according to its terms if either party requires it, and that either party shall have a right to require it, the contract does not become a wagering contract, because one or both parties intend, when the time for performance arrives, not to require performance, but to substitute therefor a settlement by the payment of the difference between the contract price and the market price at that time. Such an intention is immaterial, except so far as it is made a part of the contract, although it need not be made expressly a part of the contract." 43 But other cases would indicate that the predominant expectation will make an agreement invalid although the parties had not excluded by contract the possibility of actual performance.44
41 Harvey v. Merrill, 150 Mass. 1, 22 N. E. 49, 5 L. R. A. 200, 15 Am. St. Rep. 159; Fiske v. Doucette, 206 Mass. 275, 92 N. E. 455; Adams v. Dick, 226 Mass. 46, 115 N. E. 227. See also Houghton v. Keveney, 230 Mass. 49, 119 N. E. 447.
42 See Counselman v. Reichart, 103 la. 430, 72 N. W. 490; Snider v. Harvey, 215 Pa. 538, 64 N. E. 687; Waite v. Frank, 14 S. Dak. 626, 86 N. W. 645; Carson v. Milwaukee Produce Co., 133 Wis. 85, 113 N.W. 393.