Burns v. . Tomlinson , 147 N.C. 645 ( 1908 )

The plaintiff seeks to recover $1,920 paid by him to Robert Moore Co., of New York, "on 100 bales of cotton, October delivery, bought and sold for account of plaintiff." The following is Moore Co.'s statement, rendered 25 September, 1905:

April 27, sold 100 Bspc............................ $ 7.29 Aug. 28, bo't 100 Bspc............................. 11.10 ------$1,905 Charges brokerage, buying and selling.............. 15

Net debit............................................ 1,920

The defendant, in his verified answer, pleaded that the above transaction was void, being a contract for "futures." Upon such plea made, Revisal, sec. 1691, provides that the burden is upon the plaintiff to prove that the transaction was a lawful one, which means, of course, that actual delivery was intended by both parties, and not merely that either "had the privilege" of calling for actual delivery.

Revisal, sec. 1690, further provides that proof that the commodity was not actually delivered at the date of the contract, and that one of the parties agreed to secure or deposited "margins," shall constitute prima facie evidence of a contract declared void by Revisal, sec. 1698." (647) The evidence of the plaintiff did not tend to rebut this prima facie case, and his Honor properly told the jury that, if they believed the evidence, the plaintiff could not recover, and to answer the issue "Nothing." The plaintiff evidence is that he authorized the defendant to telegraph in his name to Moore Co., New York, to sell 100 bales of cotton, October delivery; that no cotton was delivered then nor in October; that he (plaintiff) kept up the margins; that he does not know whether or not the defendant intended to deliver the cotton; that the contract was closed out in August and he paid Moore Co. $1,920, the loss on it. The defendant did not thereafter promise to repay such loss, and if lie had done so the promise would be void. Embrey v. Jamison, 131 U.S. 336; Kahnv. Walton, 46 Ohio St. 195; Everingham v. Meighan, 55 Wis. 354; Garsed v.Sternberger, 135 N.C. 502.

Our statute (Laws 1889, ch. 221, now Rev., 1689) "to suppress and prevent certain kinds of vicious contracts" provides that no party "or agent of such party, directly or remotely connected with such contract in any way whatever, shall have or maintain any cause of action on account of any money or other timing of value paid, advanced, or hypothecated by him in connection with or on account of such contract or agency." And certainly the courts could not aid the plaintiff to a recovery, when Revisal, sec. 3824, makes it a misdemeanor, punishable by fine amid imprisonment, to aid directly or indirectly in making or furthering such contract, and even "to do any act or aid in any way in this State in the making or furthering such contract so made in another State." S. v. Clayton, 138 N.C. 732.

The same case 15 here presented as was fully discussed and decided, with citation of authorities, in Garsed v. Sternberger, supra.

No error.

Cited: Annuity Co. v. Costner, 149 N.C. 297; Rodgers v. Bell,156 N.C. 382; Cobb v. Guthrie, 160 N.C. 315; Pfeifer v. Israel,161 N.C. 412; Holt v. Wellons, 163 N.C. 129.

(648)