Birmingham Trust & Savings Co. v. Curry

• Decision Date: 22 April 1909
• Parties: BIRMINGHAM TRUST & SAVINGS CO. v. CURRY ET AL.
• Court: Alabama Supreme Court

49 So. 319

160 Ala. 370

BIRMINGHAM TRUST & SAVINGS CO. v. CURRY ET AL.

Supreme Court of Alabama

April 22, 1909

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

Action by the Birmingham Trust & Savings Company against W. W. Curry and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded.

Street & Isbell, for appellant.

Goodhue & Blackwood, for appellees.

DOWDELL C.J.

This is an action by the indorsee of a promissory note against the makers of the note. It appears from the recitals in the judgment entry that issue was made up and the case tried on defendant's pleas numbered 4 and 5. In each of these pleas illegality of consideration is set up as a defense. It is averred that the note is based on a transaction commonly known as "cotton futures," in which no delivery of cotton was contemplated by the parties, but only the settlement of winnings and losings resulting from fluctuations in the market. It is also averred in each of said pleas that the "cotton future" contracts were made by the defendant Curry, or for his benefit, with the "plaintiff."

The plaintiff made out a prima facie case upon the introduction in evidence of the note sued on. The burden was then shifted to the defendants to prove their pleas. In this the defendants failed. The averment that the cotton contract was made with the plaintiff was a material fact in issue. There was no evidence of any such contract made by or with the plaintiff; but the evidence showed that the alleged contract was made with other and different parties, and with which the plaintiff had no connection. This was a fatal variance between the averment in the plea and the proof. On this the plaintiff was entitled to the general charge requested, and the court erred in its refusal. This compels a reversal of the judgment, and the remandment of the cause for another trial. There are other questions presented by the record, which will doubtless arise on another trial and we will therefore here state the general principles which, we think, are applicable in the case, and that will serve to guide on another trial. Section 3338 of the Civil Code of 1907, vol. 2, which is the same as section 2163 of the Code of 1896, reads as follows: "All contracts founded in whole or in part on a gambling consideration, are void; and any person who has paid any money, or delivered anything of value, lost upon any game or wager, may recover such money, thing, or its value, by action commenced within six months from the time of such payment or delivery." The New York statute relating to wager contracts, which is pleaded in this case, like our statute, makes the contract void. It has been definitely determined by this...