Andrews v. George M. Shutt & Co., No. 5947.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBRYAN, FOSTER and WALKER, Circuit
Citation44 F.2d 337
PartiesANDREWS v. GEORGE M. SHUTT & CO.
Decision Date29 October 1930
Docket NumberNo. 5947.

44 F.2d 337 (1930)

ANDREWS
v.
GEORGE M. SHUTT & CO.

No. 5947.

Circuit Court of Appeals, Fifth Circuit.

October 29, 1930.


W. W. Dykes, of Americus, Ga. (Hollis Fort and W. W. Dykes, both of Americus, Ga., on the brief), for appellant.

R. L. Maynard and G. C. Webb, both of Americus, Ga., for appellee.

Before BRYAN, FOSTER and WALKER, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the appellee, a partnership, against the appellant as executrix under the will of D. R. Andrews, deceased, to recover the alleged amount of a balance claimed to be due to appellee for losses incurred, for United States revenue taxes paid, and for commissions under contracts entered into on the New York Cotton Exchange by the appellee, pursuant to instructions or orders of D. R. Andrews, for the purchase or sale of cotton for future delivery. The appellant set up as a defense that all the transactions out of which the claim asserted arose were gambling contracts, in that they were entered into and carried on with the full understanding and agreement between appellee and the deceased that no actual cotton was to be delivered or received, but that settlements were to be made on the basis of differences between the contract price and the market price on the dates of the closing of the transactions. At the conclusion of the evidence, the court granted a motion of the plaintiff that the jury be directed to find a verdict for the plaintiff for the amount sued for. That action of the court is assigned as error.

The just mentioned ruling is not sustainable, if there was substantial evidence warranting the jury in finding that the intention of both the parties to the transactions mentioned were as alleged by the appellant.

There was evidence to the following effect: The transactions out of which the claim asserted arose covered the period from October, 1924, to June, 1926, some of those transactions being contracts for the purchase of cotton for future delivery, some for the sale of cotton for future delivery, and the closing out of such contracts. Mr. Andrews was required to put up margins to protect appellee from loss. Some of the contracts were closed out upon the failure of Andrews to comply with demands for additional margin. The testimony of a member of the appellee firm indicated that during several years prior to October, 1924, there had been similar dealings between Mr. Andrews and the appellee. In none of those dealings before or after October,...

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1 practice notes
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...Cotton Oil Co. v. Chapman et al., 4 F.2d 322: Hyman & Co. v. Hay, 227 F. 898; 27 Corpus Juris, 1053; Andrews v. George M. Shutt & Co., 44 F.2d 337. Where there is evidence as to whether both parties did or did not intend that the contract in question would result in the actual delivery of t......
1 cases
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...Cotton Oil Co. v. Chapman et al., 4 F.2d 322: Hyman & Co. v. Hay, 227 F. 898; 27 Corpus Juris, 1053; Andrews v. George M. Shutt & Co., 44 F.2d 337. Where there is evidence as to whether both parties did or did not intend that the contract in question would result in the actual delivery of t......

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