Dillard v. Brenner ( 1895 )

Cooper, C. J.,

delivered the opinion of the court.

Accepting as true the testimony delivered by the defendant himself, the court should have given the peremptory charge for the plaintiffs in attachment.

The defendant, within six months next before the suing out of the attachment, gave to one Wildberger a sum of money, and instructed him to invest the same in the purchase of “ cotton futures,” which Wildberger did. The defendant now says that in regard to this transaction he was acting as the agent for one Dreyfus, and therefore Dreyfus, and not he, was the dealer in the contract for “ futures.” But it is conceded that Wildberger was not informed that the contract was being made for Dreyfus. He understood that the defendant was the purchaser, and undoubtedly would have been entitled to look to him for indemnity against any losses that resulted from the transaction, if the contract had been a lawful one.

In Richter v. State 63 Miss., 304), the appellant was convicted of selling intoxicating liquor to an infant. His defense was that the infant was, in the purchase, acting as agent for an adult principal. We held that, since the fact that the infant was acting for another was not disclosed to the defendant, the sale was to the infant.

Wildberger testifies that, in addition to the sum of $200 given him by the defendant, in November, to be invested in the purchase of cotton futures, the defendant, in December, turned over to him $300 collected from one Maddox, in payment of losses that had been sustained in the November contract. The defendant says that this money, confessedly his, was paid as the purchase price of other future contracts,” but this contract, he also says, was also made in behalf of his undisclosed principal, Dreyfus. And so, according to the defendant’s testimony, he made in his own name two contracts for cotton futures, in one of which he furnished the. money from his own means, and in neither of which was his principal disclosed. Under these circumstances he was personally bound, if anyone was. The money invested was put to risk, and he was liable to attachment, and so the court should have instructed the jury.

Reversed and remanded.