Appeal
from Circuit Court, Marshall County; W. W. Haralson, Judge.
Action
by the Birmingham Trust & Savings Company against W. W
Currey and others. From a judgment for defendants, plaintiff
appeals. Reversed and remanded.
See
also, 160 Ala. 370, 49 So. 319, 135 Am. St. Rep. 102.
The
action is in assumpsit on certain prom?ssory notes executed
by Currey, with the others named as sureties, to Hooper &
Co., and by Hooper & Co. indorsed to the plaintiff. The pleas
mentioned are as follows:
(10)
"And for further plea on this behalf the defendants say
that part of the consideration of the note sued on was and is
a gambling consideration, which arose as follows: Defendant
Currey contracted with A. B. Hooper that said A. B. Hooper
should purchase for the use and benefit of defendant Currey
from certain person or persons in the state of New York
cotton for future deliveries by merely staking margins, it
not being contemplated, either by said Hooper, or by said
Currey, or by said person or persons in New York, that the
actual cotton would be delivered, but that when the time for
delivery arrived differences would be settled by paying or
receiving the difference between price when sold and at the
time stipulated for delivery, and that at the time of the
making of said contract it was not intended, either by said
Hooper or said Currey, or by said person or persons in New
York, that the actual cotton would be delivered, but the real
intention of said Hooper and said Currey and said persons in
New York was that the differences would be settled by paying
or receiving the difference between price when sold and at
the time stipulated for delivery. That said A. B. Hooper used
the name of J. F. Hooper in making said transaction. That
part of the consideration of the note sued on was and is
commissions charged by the said A. B. Hooper for his services
as a broker in negotiating and consummating said transaction.
That the law in the state of New York was at the time of
making said contract as follows, viz.: 'All wagers, bets
or stakes made to depend upon any race, or upon any gaming by
lot or chance, or upon any lot, chance, casualty, or unknown
or contingent event whatever, shall be unlawful. All
contracts for and on account of any money or property or
thing in action so wagered, bet or staked shall be void. Any
person who shall pay, deliver or deposit any money, property
or thing in action upon the event of any wager or bet herein
prohibited may sue for and recover the same of the winner or
person to whom the same shall be paid or delivered, and of
the stakeholder or other person in whose hands shall be
deposited any such wager, bet or stake or any part thereof
whether the same shall have been paid over by such
stakeholder or not, and whether any such wager be lost or
not.' "
(12)
"That the consideration of the note sued on was and is a
gambling consideration, which arose as follows: Defendant
Currey contracted with J. F. Hooper that J. F. Hooper would
purchase for the use and benefit of defendant Currey from
person or persons in the state of New York cotton for future
delivery by merely staking margins, it not being contemplated
or intended by either of the parties, Hooper or Currey, or
the person or persons in the state of New York, that the
actual cotton would be delivered, but being contemplated and
intended by all of said parties that when the time for
delivery arrived differences would be settled by paying or
receiving the difference between the price when sold and the
price at the time of delivery. That cotton declined, and the
note sued on was given for margins advanced or staked by
Hooper for defendant Currey, at his request, in accordance
with the said illegal contract above set out. That in said
transaction Hooper acted as broker of defendant Currey, and
received certain commissions as compensation for such
services as broker, which are also a part of said note sued
on. That the contract with said person or persons in the
state of New York was made in the name J. F. Hooper, and the
defendants aver that the laws of the state of New York
provide as follows: 'All wagers, bets or stakes made to
depend upon any race, or upon any gaming by lot or chance, or
upon any lot, chance, casualty, or unknown or contingent
event whatever, shall be unlawful. All contracts for and on
account of any money or property or thing in action so
wagered, bet or staked shall be void. Any person who shall
pay, deliver or deposit any money or property or thing in
action upon the event of any wager or bet herein prohibited
may sue for and recover the same of the winner or person to
whom the same shall be paid or delivered, and of the
stakeholder or other person in whose hands shall be deposited
any such wager, bet or stake or any part thereof, whether the
same shall have been paid over by such stakeholder or not,
and whether any such wager be lost or not.' "
(13)
"And for further plea on this behalf the defendants say
that the consideration of the note sued on was and is a
gambling consideration, which arose as follows: Defendant
Currey contracted with J. F. Hooper, the payee of said note,
that said Hooper should purchase for the use and benefit of
defendant Currey, through A. Norden & Co., brokers, in the
state of New York, cotton for future delivery, by merely
staking margins with said A. Norden & Co., the margins to be
advanced by Hooper as called for by said A. Norden & Co., it
not being contemplated by either or by said Norden & Co.,
that the actual cotton would be delivered, but that the said
contract of purchase should be settled by paying or receiving
losses or winnings resulting from fluctuations in the market,
and that at the time of the making of said contract it was
not intended, either by said Hooper or Currey, or by Norden &
Co., that the actual cotton would be delivered; but the real
intention of said Hooper and Currey, and said Norden & Co.
was that said contract of purchase should be settled by
paying or receiving the losses or winnings resulting from
fluctuations in the market. That said contract of purchase
was to be made in, and in fact was governed by the laws of,
the state of New York. That at the time of making said
contract of purchase the laws of the state of New York
provided as follows: 'All wagers, bets or stakes made to
depend upon any race, or any gambling by lot or chance, or
upon any lot, chance, casualty or unknown contingent event
whatever, shall be unlawful. All contracts for and on account
of any money or property or thing in action so wagered, bet
or staked shall be void. Any person who shall pay, deliver or
deposit any money, property or thing in action upon the event
of any wager or bet herein prohibited may sue for and recover
the same of the winner or person to whom the same shall be
paid or delivered, and of the stakeholder or other person in
whose hands shall be deposited any such wager or bet or
stake, or any part thereof, whether the same shall have been
paid over by such stakeholder or not, and whether any such
wager be lost or not.' And defendants aver that the note
sued on was given for margins advanced or staked by said
Hooper for defendant Currey, at his request, in accordance
with said illegal contract, and also for commissions charged
said Currey by said Hooper for services rendered in procuring
said illegal contract."
The
demurrers assigned are: "(1) The facts relied on to show
a gambling consideration are averred by way of recital. (2)
The averment that the defendant bought cotton by simply
staking the margins is indefinite and uncertain. (3) It is
not averred that it was mutually understood and agreed
between the buyer and the seller that there was to be no
delivery of the cotton contracted for. (4) The fact well
pleaded does not show that the contract was a gambling one.
(5) The averment that the margins were staked in accordance
with the original illegal contract is the averment of a
conclusion. (6) It is not averred that the person from whom
Norden & Co. bought the cotton participated in the illegal
intention not to deliver the cotton. (7) It is not averred
that both buyer and seller agreed either expressly or
impliedly that there should be no delivery of the
cotton." These demurrers were filed to plea 13. The same
demurrers were filed to plea 12, with these additional
grounds: "It is not averred that it was understood or
agreed by the seller of cotton, at the time the contract was
made, that there should be no delivery of the cotton. The
plea does not aver that both parties to the contract agreed
that cotton should not be delivered. It is not shown how the
said illegal contract entered into the note as a part of the
consideration thereof." These same demurrers were
interposed to plea 10.
