Tanneret v. Marshall ( 1869 )

Taliaferko, J.

The plaintiff sues upon a contract, as he avers, of deposit, alleging that lie left in the month of December, 1863, with defendant as his depositary for storage and safe keeping, forty thousand pounds of lint cotton; and that having the bagging and rope necessary for baling the cotton, demanded it of defendant, who refused to deliver it. He therefore demands the delivery of the cotton, or in default thereof prays judgment against defendant for thirty thousand dollars.

The answer is a general denial. The defendant specially denies the alleged contract of deposit. He admits having agreed to sell to the plaintiff cotton for which he received eighteen thousand dollars in Confederate money; but that he never delivered to the plaintiff any cotton in pursuance of the agreement, and that he offered to return the Confederate money which plaintiff refused to receive. He avers that the consideration having been an illegal currency, the agreement was null, and that he is not bound by it. The plaintiff had judgment, and the defendant appeals.

It is clear that there was no contract of deposit. The witness Coco, introduced' by the plaintiff, states that neither he, as the agent of the plaintiff, nor the plaintiff himself, had the cotton in their possession or control. That neither he nor the plaintiff ever saw the cotton, and that it was never weighed. The cotton, when he purchased it, was in the seed. The undertaking of the defendant, it seems, was to deliver' to Coco, as the plaintiff’s agent, forty thousand pounds of lint cotton whenever plaintiff procured the necessary baling and rope to pack it.

To form the contract of deposit, there must be a delivery, the principal object of which is to take care of the thing deposited. As cotton “in the lint” was to be delivered, and a specific number of pounds, no delivery can be said to have been made as no weighing ever took place. The witness and agent 'Coco. deposes that he does not know that the cotton was ever ginned. No delivery in legal contemplation having been made to the plaintiff or his agent, no delivery by the plaintiff nor by his agent could be made to the defendant so as to constitute the latter the plaintiff’s depositary.

It clearly appears from the evidence that the consideration for which the defendant agreed to sell the cotton was eighteen thousand dollara in. tlie illegal currency of tlie so-called Confederate States. Tbe plaintiff’s agent and witness says that be paid for tbe cotton forty-five cents per pound in Confederate money, and that be counted to defendant eighteen thousand dollars.

This court has repeatedly refused to lend its aid to tbe enforcement of contracts of this kind.

It is therefore ordered, adjudged and decreed that the judgment of the District Cotirt be annulled, avoided and reversed. It is further ordered that judgment be and it is hereby rendered in favor of tbe defendant, releasing him from tbe obligation sued upon. Tbe plaintiff and appellee paying costs in both courts. Civil Code, article 2897,1 L. R. 494; Schmidt v. Barker, 17 Ann. 261.