Burgson & Co. v. Williams, Smithwick & Co

• Decision Date: 15 April 1929
• Docket Number: 27835
• Citation: 155 Miss. 351,121 So. 817
• Parties: BURGSON & CO. v. WILLIAMS, SMITHWICK & CO
• Court: Mississippi Supreme Court

121 So. 817

155 Miss. 351

BURGSON & CO. v. WILLIAMS, SMITHWICK & CO

No. 27835

Supreme Court of Mississippi

April 15, 1929

Division B

1 GAMING. Agreement that price of cotton actually delivered should be fixed by New York cotton quotations during specified time was not illegal (Hemingway's 1927 Code sections 2031, 2034).

Agreement at time of sale of cotton with actual delivery thereof that the final price was to be fixed by either party during specified period based on New York cotton quotations of the same grade of cotton held not illegal, under Code 1906 sections 2300, 2303 (Hemingway's Code 1927, sections 2031, 2034).

2. SALES. Price of commodity need not be definitely fixed at time of sale.

Price of commodity sold need not be definitely fixed at the time of sale, provided the contract of sale contains an express or implied provision by which price may be rendered certain in the future.

3. COSTS. Allowance of five per cent damages on affirmance of case on appeal from county court held erroneous.

Allowance of five per cent damages on amount of judgment of county court on the affirmance of case on appeal to the circuit court held erroneous; there being no statute authorizing the allowance.

HON. S. F. DAVIS, Judge.

APPEAL from circuit court of Leflore county, HON. S. F. DAVIS, Judge.

Action by Williams, Smithwick & Co. against Burgson & Co. Judgment for plaintiff, and defendant appeals. Reversed in part, and in part affirmed.

Judgment affirmed.

Gardner, Odom & Gardner, of Greenwood, for appellant.

The note sued on was given in pursuance of a gambling contract and therefore null and void.

Sec. 2031 of Hemingway's Code of 1927; Ascher & Baxter v. Moyse & Co., 110 Miss. 36, 57 So. 299; Cohn v. Brinson, 73 So. 59; Weld & Co. v. Austin, 56 So. 247; Gray v. Robinson, 95 Miss. 1, 48 So. 226; Montjoy v. Delta Bank, 76 Miss. 402, 24 So. 870.

The transaction on which the note was based is in violation of statute prohibiting dealing in futures.

Sec. 2034 of Hemingway's Code of 1927; Hentz & Co. v. Booz, 70 S.E. 108, 110, 8 Ga.App. 577; 1 Words & Phrases, p. 1222; Anderson v. State, 58 S.E. 401, 402; Gray v. Robinson, 48 So. 226, 95 Miss. 1.

The circuit court has no authority to add five per cent damages in affirming judgment of the county court.

Sec. 3407, Hemingway's Code 1927; Sec. 66, Hemingway's Code 1927; Section 5, Chapter 131 of the Laws of 1926; Chapter 77 of the Laws of 1928; 15 C. J., p. 280, par. 11; 7 R. C. L., p. 804, par. 32; Canal Bank & Trust Co. v. Brewer, 147 Miss. 885; Howie Bros. v. Bonds, 40 So. 227, 87 Miss. 698; Fidelity & Deposit Co. of Md. v. Wilkinson County, 109 Miss. 879, 69 So. 865; Merrill v. Machior, 30 Miss. 516; Foote v. Vanzant, 34 Miss. 40; British, etc., Co. v. Burke, 80 Miss. 643, 30 So. 51; Adams v. Saunders, 93 Miss. 520, 46 So. 960; Illinois Central R. Co. v. Coln, 145 Miss. 399, 110 So. 782.

Knox Lamb, of Greenwood, for appellee.

A contract of sale, wherein delivery is made at the time of the contract and the price is to be fixed at a future date is legal.

Clay v. Allen, 63 Miss. 426; 23 R. C. L., p. 1278; 35 Cyc. 48; Ferguson v. Coleman, 45 Am. Dec. 761; Long v. Eaves, 56 So. 178; First National Bank v. Carroll, 8 L.R.A. 275 (Iowa).

Appellees are entitled to five per cent damages upon an affirmance of a county court judgment by the circuit court.

Hemingway's Code 1927, sec. 66; Hemingway's Code 1927, sec. 3407; Hemingway's Code 1927, sec. 726.

The last-cited statute is not a penal statute but a remedial one and should be liberally construed. But regardless of whether the statute should be liberally or strictly construed it is plain and clear in its meaning and does provide for damages.

Kennington v. Hemingway, 101 Miss. 259; Maris v. Lindsey, 124 Miss. 742; Gunter v. Jackson, 130 Miss. 637; Roseberry v. Norseworth, 135 Miss. 845; 25 R. C. L. 1083.

OPINION

Anderson, J.

The appellees brought this action against appellants in the county court of Leflore county on a promissory note to recover the sum of three hundred fifty dollars and interest, which note appellants had before the bringing of the suit executed and delivered to appellees. Appellee's declaration was in the usual form, alleging the execution and delivery of the note sued on by appellants to appellees, and default in its payment. To the declaration appellants interposed two special pleas, to which appellees demurred, which demurrer was by the court overruled, and appellants declining to plead further, judgment final was rendered against appellants in favor of appellees for the amount sued for, with interest. From that judgment appellants appealed to the circuit court of Leflore county, where the judgment of the county court was affirmed; and from the judgment of the circuit court this appeal is prosecuted.

The case made by the pleadings is substantially as follows: On the 24th day of December, 1925, appellees purchased from appellants fifty bales of cotton, for which they paid appellee in cash at the prevailing market price on that date, and the fifty bales of cotton were actually delivered to the appellees, appellants retaining no control whatsoever over the cotton after its purchase and delivery. But at the time of the sale of the cotton it was agreed between the parties that the amount paid on that date for the cotton was not the final price to be paid therefor; the final price was to be fixed between the parties in the following manner: At any time between the 1st and 25th of December, 1925, either party to the transaction should have the right to call the price, based on New York cotton quotations on the day of the call, of the same grade of cotton, plus seventy-five points as a premium for the staple. In pursuance of that agreement, on the 14th of December, 1925, appellees called the price, and according to the agreement, the price of cotton at that time was one thousand thirty-nine dollars and fifteen cents less than the amount paid by appellees to appellants at the time of the purchase and delivery of the cotton; the result being, under the agreement, that appellants were due to pay back to appellees that amount. Thereupon, in final settlement of the transaction, appellants paid to appellees six hundred seventy-five dollars and fifty-three cents in cash, and executed their note for the balance to be paid at a future date, which note is the basis of this section.

Appellant's defense was that the note sued on was illegal and void because the consideration therefor grew out of gambling and future transactions between appellants and appellees, in violation of the statutes of this state. The fact relied on by appellants to sustain that position was the manner in which the final price of cotton was to be fixed, as above set out. The appellants, by way of set-off and counterclaim, sought to recover over against appellees the sum of six hundred seventy-five dollars and fifty-three cents, which sum appellants, as stated, had paid to appellees after the price of the cotton had been called. Appellees' demurer to the special plea necessarily disposed of the counterclaim adversely to the appellants.

The gambling statute relied on by appellants is in this language (section 2300, Code of 1906; section 2031, Hem. 1927 Code): "Contracts, judgments, securities, conveyances made, given, granted, or executed, where the whole or any part of the consideration or foundation thereof shall be for money, or any valuable thing won, lost, or bet at any game or games, or on any horse-race, cock-fight, or at any other sport, amusement, or pastime, or on any wager whatever, or for the reimbursing or repaying any money knowingly lent or advanced for the purpose of such gaming or gambling, or to be wagered on any game, play, horse-race, cock-fight, or on any sport, amusement, pastime, or wager, shall be utterly void."

The futures statute, also relied on by appellants, being section 2303, Code of 1906 (section 2034, Hemingway's Code of 1927), is as follows: "A contract for the purchase or sale of a commodity of any kind, to be delivered at a future date, the parties not intending that the...