Isaacs v. Silverberg , 87 Miss. 185 ( 1905 )

Calhoon, J.,

delivered the opinion of the court.

Mr. Isaacs, in his declaration against appellees, avers that he is a citizen of the state of Louisiana and that they are citizens of the state of Mississippi, and that he contracted with them to buy “for h'im cotton for future delivery,” and that he gave them $400 “as a margin;” that the contract was not with the intention of either party of any actual delivery of the cotton to either of the parties, but “was in fact none other than a gambling one in cotton futures, and so known to both plaintiff and defendants; and that the money so paid over has been lost under said gambling contract.” Appellees demurred; the demurrer was sustained, and the appellant declined to amend or plead further, and appeals.

Such speculative contracts with brokers were valid at common law, are valid now in some states, would be valid in Mississippi but for statutes, and are, perhaps, valid if made in Louisiana, where Mr. Isaacs resides. It may be said in passing that the declaration does not aver where the contract was made, and that, if it was made in Louisiana by correspondence, Mr. Isaacs, from his view of the law, may be in a very comfortable position indeed. 'All he would have to do would be to select a solvent broker in Mississippi, and he could indulge in dealings in futures to his heart’s content, safe from suit, with the certainty of never remaining loser. lie could always recover from his broker the margins he turned over to him for investment. This is an argument quite persuasive that there was no legislative intent to encourage such a state of affairs. If it did intend such results, the statute making them possible should be plain. Certain it is that Mr. Isaacs was in full complicity with appellees, and the court below would not entertain his case, -any more than it would have entertained the case of appellees if they had sued him for unpaid margins. Adler v. Searles, 86 Miss., 406 (s.c., 38 South. Rep., 209).

His learned counsel, however, knowing the necessity of producing some enactment to give him a standing in the courts, rely on Code 1892, § 2116, and especially on the words in that section, “or by any wager whatever.” The same words, “or on any wager whatever,” are also used in sec. 2114, which- declares that all “contracts,” etc., based on the foundation of “money or any valuable thing won, lost, or bet at any game or games, or on any horse race, cockfight, or at any other sport, amusement, or pastime, or on any wager whatever, or for the reimbursing' or repaying of any money lent or advanced for the purpose of such gaming or gambling, or to be wagered on any game, play, horse race, cockfight, or on any sport, amusement, pastime, or wager, shall be utterly void.” Section 2116 is this: “If any person, by playing at any game whatever, or by betting on the sides or hands of such as do play at any game, or by betting on any horse race, or cockfight, or at any other sport or pastime, or by any wager whatever, shall lose any money,” etc., “and shall pay or deliver the same, the person so losing,” etc., “may sue for and recover such money,” etc., “from the person knowingly receiving the same, with costs.” Whether these sections, without more, would cover the present case, we need not decide. But the very next section (2117) is as follows: “A contract for the purchase or sale of a commodity of any kind, to be delivered at a future day, the parties not intending that the commodity is to be actually delivered in kind and the price paid, shall not be enforced by any court; nor shall any contract of the kind commonly called ‘futures’ be enforced; nor shall a contract in this section mentioned be a valid consideration, in whole or in part, for any promise or undertaking.”

On the doctrine “nosciiur a sociis" applied to construction, we are of opinion that operations in “futures” were not designed to be included among the sorts of wagering referred to in the first two sections, so as to authorize recovery of money paid the broker. If the reverse was the purpose, and if such transactions were designed to be in the category of wagers, as mentioned in the preceding sections, then the provisions of sec. 2117 are useless verbiage, since there would be precisely the same lack of power to recover under the preceding section (2116). The legislature -was content with specifically refusing the enforcement of “futures” contracts in sec. 2117 and in fixing penalties in secs. 1120, 1121. 14 Am. & Eng. Ency. Law, 640.

Affirmed.