Opinion
No. 39550.
May 16, 1955.
1. Gaming — cotton futures — no actual delivery contemplated — suit on notes for losses sustained in transactions — dismissed.
In suit to recover amounts due on notes given for losses sustained in transactions involving cotton futures where Judge sitting as Judge and jury found from evidence that there was no contemplation of an actual delivery of cotton involved in such transactions, such transactions were in violation of the State gambling laws, and Court properly dismissed suit. Secs. 25-33, Code 1942.
2. Gaming — statutes — brokers — transmitting for execution contracts for sale — for future delivery.
Statute authorizing brokers to transmit for execution contracts for sale for future delivery, did not render sales of cotton futures valid where there was no contemplation of an actual delivery of cotton involved. Secs. 25-33, Code 1942.
3. Gaming — same — same — same — same — legislative intent.
Legislature did not intend by passage of law authorizing brokers to transmit for execution contracts for sale for future delivery to change law providing that any contract of sale for future delivery of cotton, grain, stocks, or other commodities made without any actual bona fide execution in carrying out such contract shall be void and unenforceable. Secs. 28, 33, Code 1942.
Headnotes as approved by Hall, J.
APPEAL from the Circuit Court of Bolivar County; E.H. GREEN, Judge.
Levingston Bizzell, Cleveland, for appellant.
I. Appellee Capps' future contracts were all executed and performed or discharged in accordance with the requirements of Chapter 304 of Laws of 1928, and are therefore valid and enforceable. Aetna Ins. Co. v. Commander, 169 Miss. 847, 153 So. 877; Alamaris v. J.F. Clark Co., 166 Miss. 122, 145 So. 893; Andrews v. George M. Shutt Co., 44 F.2d 337; Ascher Baxter v. Edward Moyse Co., 101 Miss. 36, 57 So. 299; Bank of United States v. Deveaux, 5 Cranch (U.S.) 61, 3 L.Ed. 38; Chickasha Cotton Oil Co. v. Chapman, 4 F.2d 319; Cohn v. Brinson, 112 Miss. 348, 73 So. 59; Falk v. J.N. Alexander Mercantile Co., 138 Miss. 21, 102 So. 843; Gettys v. Newburger, 272 Fed. 209; Gray v. Robinson, 95 Miss. 1, 48 So. 226; Hyman Co. v. Hay, 277 Fed. 898; Lincoln Park Coal Brick Co. v. Wabash Ry. Co., 338 Ill. 82, 170 N.E. 8; Mahorner v. Hooe, 17 Miss. 247, 9 Sm. M. 247; Mullinix v. Hubbard, 6 F.2d 109; Orrell v. Bay Mfg. Co., 83 Miss. 800, 36 So. 561; State v. Edward Hines Lbr. Co., 150 Miss. 1, 115 So. 598; United States v. Miller, 208 U.S. 32, 52 L.Ed. 376, 28 S.Ct. 199; United States v. Trans-Missouri Freight Assn., 166 U.S. 304, 41 L.Ed. 1006, 17 S.Ct. 599; Weld Co. v. Austin, 107 Miss. 279, 65 So. 247; Sec. 2303, Code 1906; Secs. 931-32, 1913-15, Code 1917 (Hemingway's); Secs. 1828-30, Code 1930; Secs. 26, 28, 33, Code 1942; Chap. 304, Laws 1928; 14 Am. Jur., Courts, Sec. 79; 17 C.J.S., Contracts, Sec. 211 (b); Sec. 8.03 (1), New York Cotton Exchange By-law.
II. Any gambling intent that there may have been, if there was any, which we deny, was that of Capps alone, not the appellant. Alamaris v. J.F. Clark Co., supra; Board of Trade of the City of Chicago v. Christie Grain Stock Co., 198 U.S. 236, 49 L.Ed. 1031, 25 S.Ct. 637; Clay v. Allen, 63 Miss. 426; Secs. 26, 33, Code 1942; 24 Am. Jur., Sec. 74; 21 Words and Phrases 726.
III. The judgment of the Lower Court is contrary to the overwhelming weight of the evidence and the laws of the State of Mississippi. Alamaris v. J.F. Clark Co., supra; Bibb v. Allen, 149 U.S. 481, 37 L.Ed. 819, 13 S.Ct. 950; Board of Trade of the City of Chicago v. Christie Grain Stock Co., supra; Capps v. Postal Telegraph-Cable Co., 197 Miss. 118, 19 So.2d 491; Falk v. J.N. Alexander Mercantile Co., supra; Gettys v. Newburger, supra; Hyman Mercantile Co. v. Kiersky, 192 Miss. 195, 4 So.2d 881; Knox v. Clark, 177 Miss. 195, 171 So. 340; Weld Co. v. Austin, supra; Sec. 2303, Code 1906; Secs. 26, 28, 33, Code 1942; Chap. 304, Laws 1928; Cotton Year Book of New York Cotton Exchange (1952-53).
Alexander, Feduccia Alexander, Cleveland, for appellee.
I. Cited and discussed the following authorities: Alamaris v. J.F. Clark Co., 166 Miss. 112, 145 So. 893; Andrews v. George M. Shutt Co., 44 F.2d 337; Ascher Baxter v. Edward Moyse Co., 101 Miss. 36, 57 So. 299; Avery v. Goodrich, 103 Okla. 156, 229 P. 577; Benson-Stabeck Co. v. Res. Farmers Grain Co., 62 Mont. 254, 205 P. 651; Capps v. Postal Telegraph-Cable Co., 197 Miss. 118, 19 So.2d 491; Chickasha Cotton Oil Co. v. Chapman, 4 F.2d 319; Clark v. McNeill, 25 F.2d 247; Cohn v. Brinson, 112 Miss. 348, 73 So. 59, Ann. Cas. 1918E, 134; Falk v. J.N. Alexander Mercantile Co., 138 Miss. 21, 102 So. 843; Faulk Co. v. Fenner Beane, 221 Ala. 96, 127 So. 673; Fenner Beane v. Phillips, 222 Ala. 106, 130 So. 892; Gettys v. Newburger, 272 Fed. 209; Gray v. Robinson, 95 Miss. 1, 48 So. 226; Holbrook v. Sheppard, 279 Fed. 193; Hyman Co. v. Hay, 277 Fed. 898; James v. Clement, 223 Fed. 385; Johnson v. John F. Clark Co., 224 Ky. 598, 6 S.W.2d 1048; Meador v. Hotel Grover, 193 Miss. 392, 9 So.2d 782; Mullinix v. Hubbard, 6 F.2d 109; Sharp v. Stalk, 63 N.J. Eq. 596, 52 A. 1120; Southwestern Bell Tel. Co. v. Bagley Co., 178 Ark. 876, 12 S.W.2d 782, 62 A.L.R. 177; Uhlman Grain Co. v. Dickson, 56 F.2d 525; Weld Co. v. Austin, 107 Miss. 279, 65 So. 247; Western Union Tel. Co. v. McLaurin, 108 Miss. 273, 66 So. 739, L.R.A. 1915C, 487; Federal Grain Futures Act, 7 U.S.C.A., Sec. 1, et seq; U.S. Cotton Futures Act, 26 U.S.C.A., Sec. 731, et seq.; Secs. 22, 26, 28, 33, 2189, Code 1942; Chap. 304, Laws 1928; 1 Am. Jur. 414-15; 27 C.J. 1053, et seq.; 1 C.J.S., Sec. 13 pp. 996-98; Vol. II, Elliott on Contracts, p. 298, et seq.
This suit was filed by appellant in the circuit court against appellee for the recovery of $8,253.90 plus interest and attorney's fees represented by three promissory notes dated October 24, 1952. The notes were given in liquidation of an open account owing by appellee to appellant for losses sustained in transactions involving cotton futures. Appellant is a broker duly licensed by the New York Cotton Exchange and handled on the floor of the exchange the numerous buy and sell orders of appellee which resulted in the total loss in question. Appellee pleaded that the transactions were in violation of the gambling laws of Mississippi. The case was tried by agreement before the circuit judge without a jury. He found as a fact from the evidence that there was no contemplation of an actual delivery of the cotton involved in these transactions and dismissed the suit.
(Hn 1) Under this finding the lower court held, and we think correctly so, that this case is controlled by the cases of Alamaris v. Jno. F. Clark Co., 166 Miss. 122, 145 So. 893, and Capps v. Postal Telegraph-Cable Co., 197 Miss. 118, 19 So.2d 491. (Hn 2) Appellant concedes this position to be correct but argues that the Alamaris case, wherein the Court considered Chapter 304, Laws of 1928, was decided under two sections of said chapter and that the Court never considered nor had brought to its attention the provisions of Section 9 of said Chapter, and that Section 9, when considered along with the other provisions of the Act, makes these transactions perfectly legal. Chapter 304, Laws of 1928, is brought forward as Sections 25 to 33, inclusive, of the Code of 1942, and Section 9 of the Act is the same as Section 33 of the Code. It is inconceivable to us that the Court did not consider the whole Act, (Hn 3) and it is further inconceivable that the legislature intended by its passage to change the law as repeatedly laid down by our statutes and decisions since the beginning of our statehood. This was said in the Alamaris case and we adhere to it.
Affirmed.
McGehee, C.J., and Kyle, Arrington and Gillespie, JJ., concur.