Campbell v. New Orleans National Bank , 74 Miss. 526 ( 1896 )

Woods, J.,

delivered the opinion of the court.'

The pleas allege, in unmistakable terms, a wagering contract, and the appeal from the judgment of the court below holding them bad, presents this single question, viz.: Is the fact that judgment was rendered on the note of appellant in settlement of his losses under the contract, a preclusion of inquiry as to the nature of that contract in an action upon the judgment ?

Section 990 of the code of 1880, and the corresponding section (2114), code of 1892, renders void any judgment on “any wager whatever, ’ ’ and the appellant, if he had paid the money lost by him on the wager, could have recovered it back.

Section 189 of Tiedeman’s Commercial Paper employs this language: “The cases are unanimous in the opinion that a contract for the payment of differences in prices, arising out of the rise and fall in the market price above or below the contract price, is a wager on the future price of the commodity, and is therefore invalid. ’ ’ And the author cites a large number of cases in support of his proposition. Neither in text-book nor adjudicated cases have we been able to find a single opposing authority.

But this is the doctrine clearly announced by this court in the case of Clay v. Allen & Co., 63 Miss., 426. Said the court: “ Such a proceeding is a wager, and, as such, void only when the real intent of the parties is to speculate in the rise and fall of prices and the goods are not to be delivered, but one party is to pay the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract. ’ ’

Now, the pleas in the case before us distinctly aver just such a wagering contract out of which the note and judgment grew, and are a perfect defense to the action on the judgment, if maintained by sufficient evidence.

Reversed and remanded.

Somerville c& McLean, for the appellees, filed a suggestion of error.

Woods, C. J., delivered the following response to the suggestion of error filed by appellee.

The view contended for in the brief filed with the suggestion of error, as well as the view advanced in the original brief of appellee’s counsel, involves the idea of the repeal of § 990 of the code of 1880, by the act of 1882, in so far as dealings in futures were embraced in that section of the code. But there is not the slightest reference in the act of 1882 to § 990 of that code, and repeals by implication are not favored. The repeal by implication must clearly appear in the supposed repealing act, and we fail to find any purpose to repeal any former law by the act of 1882. Rather, it appears to have been the intention of the legislature, by enacting the statute of 1882, to enlarge the existing law. The first section of the act of 1882 makes criminal any dealings in futures, and the second section declares such contracts nonenforceable. But they were already nonenforceable under section 990 and the interpretation placed on that section in Clay v. Allen, 63 Miss., 426, and, therefore, this second section of the act of 1882 was, so far as concerns contracts made in this state, idle, and added nothing to the law already long in force. Neither did it, as to such contracts, take anything from that law.

Suggestion is denied.