Syllabus
by the Court.
"A
contract will be construed as made for a legal, rather than
for an illegal, purpose, and the more especially when such
contract is attacked by a party thereto who has been
benefited thereby" (Virginia Bridge & Iron Co. v
Crafts, 2 Ga.App. 126 [3], 58 S.E. 322; Kiser Co. v
Padrick, 30 Ga.App. 643 [2], 118 S.E. 791), and will not
be held invalid on demurrer, unless the invalidity appears
upon its face.
A
valuable consideration is essential to a sale; it must either
be definite, or an agreement made by which it can be made
certain; if its ascertainment becomes impossible, there is no
sale. The fact that the price of goods sold and delivered was
to be ascertained subsequently, by the condition of the
market within a specified time at a particular place, does
not affect the validity or completeness of the sale, unless
for some reason the ascertainment by the terms of the
contract becomes impossible.
It
affirmatively appears from the petition, designated in the
court below as 550, that certain moneys which were loaned to
the defendant were used by the latter for the illegal purpose
of dealing in cotton futures on margins, and that the
plaintiff not only had knowledge of such purpose, but that he
aided the borrower in carrying into effect the unlawful
design, and participated therein. In such a case the lender
cannot recover for the loans. But under the rulings stated in
the two preceding headnotes, the action was not wholly bad
and the court erred in sustaining the general demurrer
thereto.
Where
one person delivers property to another in pursuance of a
contract of sale providing that the price or consideration
shall be determined by the condition of the market within a
specified time at a particular place, if the price is not
fixed within the time specified, and no new agreement is made
with reference thereto in the meantime, there is an
impossibility to ascertain the price by the terms of the
original contract, and there is no sale. Without more, the
rights of the seller could only be fixed upon a quantum
valebat. In such a case the expired agreement could not be
legitimately employed as the basis for a new agreement
providing that the price would be determined by the future
condition of the market, and that the difference between the
parties would be settled in money on the day fixed for
ascertaining the price. Such new agreement could not be made
in contemplation of an actual delivery, but the parties would
be dealing in futures on margins, and neither could recover
of the other upon a claim founded in such illegal
transaction.
(a)
Applying these rulings to the two actions designated in the
court below as No. 548 and No. 549, the general demurrer to
each was properly sustained.
Error
from City Court of Hall County; W. B. Sloan, Judge.
Three
separate actions by S. H. Allen against L. R. Sams and
others. Judgment for defendants on demurrer in each case, and
plaintiff brings error. Affirmed as to two cases, and
reversed, with directions, as to the other.
BELL
J.
S. H.
Allen filed three suits, designated in the court below as
Nos. 548, 549, and 550, against L. R. Sams & Co., a
partnership. He has excepted to the sustaining of a general
demurrer to his complaint in each case. Our decision in case
No. 550 will dispose of all the questions presented in Nos.
548 and 549 save one, and the several cases will be treated
together. The petition in No. 550 (omitting formal parts
alleges as follows:
"4. That said partnership is indebted to petitioner in
the sum of $15,837.44, besides interest as hereinafter shown.
"5. That on the 18th of November, 1921, petitioner sold
and delivered to said partnership 100 bales of cotton; that
the number and weight of each of said bales is correctly set
forth in a copy of the contract or purchase of same by said
partnership hereto attached, marked 'Exhibit A,' as
part of this petition.
"6. That the aggregate weight of said bales was 42,263
pounds.
"7. That said cotton was actual cotton and was actually
delivered by petitioner to said partnership in Gainesville,
Ga., on said date, and recovered and taken possession of by
said partnership and converted to the use of said firm.
"8. That said cotton was sold by petitioner to said
partnership on the following terms: That said partnership
would pay on said cotton only as a partial payment of the
purchase money of said cotton $4,976.82 in cash, and would
make the payment of the balance to petitioner of said
purchase money whenever petitioner should call upon them for
said balance; the entire 100 bales to be then paid for at the
price of 115 points on the July cotton price and quotation on
the cotton exchange of New Orleans with 200 points off good
middling on the day petitioner called upon them for a
settlement. A copy of said contract or purchase is annexed
hereto, marked 'Exhibit A,' as a part of this
petition.
"9. That the partial payment of the purchase money of
said 100 bales of cotton, amounting to $4,976.82, which was
duly paid by said partnership, but the balance of said
purchase money has never been paid.
"10. That on the 20th day of June, 1922, petitioner,
exercising his rights under the aforesaid contract, called
upon said partnership for a settlement for said cotton, for
the payment of said balance.
"11. That on said 20th day of June, 1922, the price and
quotation of cotton on the cotton exchange at New Orleans for
July was 23.08 cents a pound, to which, if 115 points be
added [to] the purchase price per pound, would be 24.23
cents, and taking off 200 points on grading from good
middling made the price 22.23 cents per pound, and the price
of the whole weight, to wit, 46,263 pounds of said 100 bales,
at said 22.23 cents per pound, was $10,284.26.
"12. That deducting the sum of $4,976.82 paid by said
partnership as aforesaid as a partial payment, there was due
to petitioner, as the balance of the purchase money of said
100 bales, according to the said contract, on said 20th day
of June, 1922, the sum of $5,307.44.
"13. That said balance of $5,307.44 is now due and
unpaid, and on said sum petitioner is entitled to interest at
7 per cent. per annum from said 20th day of June, 1922, until
it is paid.
"14. That on the date of the above purchase and the date
of said contract the aforesaid partners were engaged in the
business of buying and selling cotton as partners, and so
continued until and on said 20th day of June, 1922.
"15. That from October 18, 1921, until February 2, 1922,
said partnership being engaged in buying and selling cotton,
on call, on prices to be fixed by the price and quotation of
price of cotton on the New York and New Orleans cotton
exchanges at the date of call, in order to protect themselves
against the possible fall of prices, from time to time made
contracts for the purchase or sale of cotton through brokers
on or in the cotton exchanges aforesaid, or during business
on or through said exchanges, and, in order to keep said
contract alive, were required to put up what are called
'margins,' or certain percentages of the contract
prices on their various contracts, and obtained from
petitioner various amounts of money, either in cash, check,
or draft, as hereinafter itemized, which amounts were
furnished said defendant at their request.
"16. On October 8, 1921, petitioner wired to Hubbard
Bros., New York, $500 for account of J. M. Hulsey for said
partnership, at the request of J. M. Hulsey, on contract for
100 bales of March cotton.
"That on November 1, 1921, petitioner wired J. D.
Haywood & Son, cotton merchants, New Orleans, $1,000 at the
request of L. R. Sams for said partnership.
"That on November 11, 1921, petitioner sent direct to
said partnership $2,000 at their request, to be used by them
as a margin aforesaid.
"On November 12, 1921, petitioner, at the request of L.
R. Sams, for said partnership wired to J. D. Haywood & Son at
New Orleans $1,000 for said partnership of L. R. Sams
Company.
"On November 18, 1921, petitioner wired to J. D. Haywood & Son, New Orleans, $1,500 for said partnership of L. R. Sams
Company.
"On January 26, 1922, petitioner paid for said L. R.
Sams Company, $3,500 to J. D. Haywood & Son, New Orleans,
paid through H. K. Stanford of Atlanta; said amount being
paid by petitioner at the request of L. R. Sams for said
partnership.
"On February 2d, petitioner wired J. D. Haywood & Son,
at New Orleans, for said L. R. Sams Company, and at their
request, $2,000.
"The above amounts aggregate $12,500.
"The said L. R. Sams Company repaid to petitioner on
account of the foregoing on December 2, 1921, $1,000, and on
December 23, 1921, $500, and $500 on February 18, 1922,
aggregating $2,000, leaving due to petitioner on foregoing
advancements the sum of $10,500, which he prays to recover
from said defendants with interest from February 18, 1922.
"Wherefore petitioner prays," etc.
The
contract, attached to the petition as Exhibit A, was as
follows:
"No.
______ Gainesville, 11""18""1921.
Invoice of 100 bales of cotton bought by L. R. Sams Co.
From S. H. Allen, against sales 100 B/C reported
11--17--21.
Limit 115 points on New Orleans July basis G. M.
Marks 51 B/C AA 49 B/C XX.
(At this point in the contract is a description
of the cotton by the serial numbers and the weights of the
several bales.)
Above-described cotton averages 200 points off good
middling, and there being advanced $4,976.82, balance to be
paid at option of S. H.
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