Burns v. Tomlinson
| Decision Date | 20 May 1908 |
| Citation | 61 S.E. 615,147 N.C. 634 |
| Parties | BURNS v. TOMLINSON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Anson County; Webb, Judge.
Action by C. M. Burns against T. R. Tomlinson. Judgment for plaintiff, and defendant appeals. New trial.
On an issue whether a contract was for an actual sale and delivery of cotton or was a contract for "futures," it was error to exclude evidence that the contract was made in a "bucket shop," and that contracts for "futures" were made in that place.
On an issue whether a contract was for an actual sale and delivery of cotton, or for "futures," it was error to exclude evidence tending to show a course of dealing in "futures" between the parties extending over several years and down to the time of the contract, without any actual delivery of cotton.
Robinson & Caudle, J. A. Lockhart, and J. T. Bennett, for appellant.
McLendon & Thomas and J. W. Gulledge, for appellee.
This is an action to recover $1,264.05, loss upon a contract made by defendant February 16, 1905, to deliver to the plaintiff during October, 1905, 100 bales cotton at 7 1/2 cents. Cotton was higher in October, and the defendant did not deliver. The defendant pleaded in his verified answer that this was a gambling contract or "future" forbidden by acts 1889, p. 233, c. 221, § 1, now Revisal 1905, § 1689. This cast upon the plaintiff the "burden to prove by proper evidence other than any written evidence thereof that the contract sued upon is a lawful one in its nature and purposes." Revisal 1905, § 1691. The placing the burden of proof is in the legislative power even in criminal cases. Conner, J., in State v. Barrett, 138 N.C. 630, 50 S.E. 506, 1 L. R. A. (N. S.) 626, which is a very full and conclusive discussion of the point; State v Hinnant, 120 N.C. 572, 26 S.E. 643; State v Surles, 117 N.C. 726, 23 S.E. 324; State v Burton, 113 N.C. 655, 18 S.E. 657. This feature in this particular statute was sustained in State v McGinnis, 138 N.C. 730, 51 S.E. 50. The plaintiff testified that he expected the defendant to make actual delivery of the cotton; that he did not buy the cotton for his cotton mill; that he had bought and sold a great many contracts on which he did not receive and deliver cotton; that the defendant was a speculator in cotton; that up to this default the defendant had paid him for all his transactions; that he (the plaintiff) had speculated a great deal in cotton. The defendant testified that the contract was purely speculative. In this conflict of evidence it was error to exclude the defendant's testimony that the contract was made in a "bucket shop," and that contracts for "futures" were made in that place. This, taken with the other evidence, might have thrown some light on the nature of the transaction. It was also error to refuse to permit the defendant to answer the question whether or not he expected to deliver the cotton, and whether or not the plaintiff expected to receive actual delivery of the cotton. The court also excluded testimony offered that another person stated in the presence of plaintiff and defendant at the time of the execution of the contract that it could be closed out by either party by paying the difference. The court also erroneously excluded evidence of conversation between the parties on a subsequent date as to the contract. The court also refused to permit the defendant to answer the...
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