Bibb v. Allen, 269

CourtUnited States Supreme Court
Citation37 L.Ed. 819,13 S.Ct. 950,149 U.S. 481
Docket NumberNo. 269,269
PartiesBIBB v. ALLEN et al
Decision Date10 May 1893

149 U.S. 481
13 S.Ct. 950
37 L.Ed. 819


ALLEN et al.

No. 269.
May 10, 1893.

Page 482

The defendants in error, citizens of the states of New York and Tennessee, and doing business in the city of New York as brokers, commission merchants, and cotton factors, under the firm name and style of Richard H. Allen & Co., brought this action of assumpsit in February, 1887, against the plaintiff in error and one Hopkins, citizens of Alabama, as partners under the name of B. S. Bibb & Co., to recover the sum of $20,023.50 with interest, which was claimed as commissions for services rendered, and money paid and advanced by them for and at the request of the defendants in selling, for their account, and as their agents, cotton for future delivery, according to the rules and regulations of the New York Cotton Exchange, in the city of New York.

The declaration or complaint was in the usual form, and contained but a single count for work and labor done, services rendered, and money paid out and expended by the plaintiffs during the month of December, 1886, at the instance and request of the defendants, to the amount of $20,023.50, which, with interest thereon, was averred to be past due and unpaid. The defendants answered separately. Neither of them de-

Page 483

nied the existence of a partnership betwen them, but both defended upon the merits. The answer of the defendant Hopkins consisted of two pleas: (1) Nonassumpsit; (2) that the plaintiffs did not do the work and labor or pay the money mentioned in the complaint at his instance or request. The defendant Bibb filed an answer containing five pleas, the first two of which were the same as those interposed by Hopkins. His third plea was a general denial of the allegations of the complaint, while the fourth and fifth averred that the work and labor performed by the plaintiffs, as set forth in their declaration, was the making of 11 wagers for him on the price of cotton, and that the money paid by the plaintiffs for him was in the settlement of the losses of those wagers, and in each of these pleas the statute of the state of New York against wagers, bets, and gambling transactions was set out.

After issue joined on the pleas, the defendant Bibb, by leave of the court, filed a sixth plea, setting up that on November 10, 1886, the plaintiffs, as special agents for him, sold 10,000 bales of cotton by various contracts, as a speculation, and for future delivery in New York, and averred that the plaintiffs, by their gross negligence and unskillfulness, made said contracts in such forms that all of said contracts, under the laws of the state of New York, were unlawful and void, and not binding on any one of the parties to said contracts, or either of them, in this: that in and by the statute law of New York in force at the time said contracts were made it is declared that 'every contract for the sale of any goods, chattels, or things in action, for the price of $50 or more, shall be void unless (1) a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or (2) unless the buyer shall accept and receive a part of such goods, or the evidences, or some of them, of such things in action; or (3) unless the buyer shall at the time pay some part of the purchase money.' It was further averred that no note or memorandum of any of the contracts of sale made by plaintiffs for defendant was made in writing and signed by the parties to be charged thereby; that no part of said

Page 484

cotton was accepted by the buyer, and no part of the purchase money was paid therefor. The plea further alleged that on December 30, 1886, the plaintiffs, without the request of the defendants, but voluntarily, settled said void contracts, and paid to the buyers of the cotton under such contracts large sums of money, and concluded with the averment that, without this, the plaintiffs never did any work, or paid any money, for the defendant.

Upon the trial of the cause before the court and a jury, the court, after stating to the jury that there was no evidence in the case upon which a verdict for the defendant Bibb could rest, on the ground that the contract sued on was a gambling contract, and therefore void, further instructed them that 'the defendant Bibb did not in his testimony deny the correctness of the account sued on, but did say that the plaintiffs were liable to him for their failure to execute his subsequent orders to them to sell, for future delivery, some twenty-two thousand bales of cotton, as shown in the evidence in this cause; but, there being no claims by him in this suit against the plaintiffs on account of such failure to execute such orders, 'I charge you that, if you believe the evidence, you should find a verdict for the plaintiffs against the defendant Bibb for the amount of the account and interest." The court further charged the jury: 'This case is made out as to defendant B. S. Bibb, and it is your duty to find a verdict against him for the account sued on and interest.'

To the instruction that if they believed the evidence they should find a verdict for the plaintiffs against him for the account sued on and interest, the defendant Bibb excepted. The jury returned the following verdict: 'We, the jury, find for the plaintiffs against the defendant Bibb, and assess the damages at $22,476.38; and we find for the defendant T. H. Hopkins on the ground that we find he was not a partner of B. S. Bibb.' Upon a return of this verdict the defendant Bibb objected to a judgment being rendered against him thereon, for the reason that the complaint and pleadings and said verdict did not authorize a judgment against him. No other ground of objection was stated or interposed. The court over-

Page 485

ruled his objection, and entered judgment against him for the amount found by the jury, to which Bibb excepted. The present writ of error is prosecuted by him to reverse that judgment.

Geo. H. Craig and E. W. Pettus, for plaintiff in error.

Page 486

A. A. Wiley, for defendants in error.

Mr. Justice JACKSON delivered the opinion of the court.

He has filed 19 assignments of error, which may be grouped under 5 heads or propositions, viz.: (1) That the court erred in overruling the motion to suppress the deposition of the witness Richard H. Allen; (2) that the court erred in admitting as evidence the statutes of New York, under which the New York Cotton Exchange was incorporated, and the rules and regulations of the exchange, together with the parol testimony that the transactions in

Page 487

question between the parties were conducted in accordance with those rules and regulations; (3) that the contracts for the sale of cotton for future delivery were gambling contracts within the meaning of the New York statute against wagers, bets, etc.; (4) that said contracts were invalid under the statute of frauds of the state of New York; and (5) that under the pleadings no judgment could be rendered against the defendant Bibb alone.

The questions thus presented may be properly considered in the order stated, under the facts disclosed by the bill of exceptions. The motion to suppress the deposition of the witness Richard H. Allen was based on the ground that no commission was issued out of the court, or by the clerk thereof, authorizing George H. Corey, as commissioner, to take the deposition; and, secondly, that neither of the defendants or their attorneys received any notice of the time and place of taking the deposition, or of the residence of either the witness or the commissioner by whom the deposition was taken. These objections to the deposition are clearly not well taken, for several reasons: It is shown by the record that on April 7, 1888, a notice was issued and served on the defendants that plaintiffs would take the deposition of the witness Allen, whose place of business was stated in the notice to be 31 and 33 Broad street, New York city; and that George H. Corey, whose place of business was 60 Wall street, in that city, would be suggested as commissioner to take such deposition; and that a copy of the interrogatories to be propounded to the witness was attached to the notice. It further appears that at that time the defendant Bibb objected to a commission being issued to take the deposition on the interrogatories to be propounded by the plaintiffs, basing his objection on the ground that the notice did not give the residence of the witness and of the commissioner, and on the further ground that no sufficient affidavit for the taking of the deposition had been filed, which objections were manifestly insufficient, inasmuch as the place of business of both the witness and the commissioner was stated, and an affidavit was filed by the attorney for the plaintiffs which showed

Page 488

proper ground for taking the deposition. Without invoking the action of the court upon these objections, the defendant Bibb filed cross interrogatories to those propounded by the plaintiffs, and on April 18, 1888, a commission was regularly issued to said George H. Corey, as commissioner, to take the deposition on the interrogatories and cross interrogatories filed, in accordance with the terms of the notice served upon the defendants. The record further shows that the deposition was actually taken in pursuance of the commission thus issued, and was in all respects regular and in proper legal form. The clerk of the court, in issuing the commission, addressed it, however, to George H. Carey, Esq., 60 Wall street, New York city, instead of to George H. Corey, but that was purely a clerical mistake in making out the commission, and in no way misled the defendant or affected his rights. He had been notified of the place of taking the deposition, and had been given the true name of the commissioner, and the slight variance in the commission which issued was not material, and furnished no valid ground for the suppression of the...

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