Capps v. Postal Telegraph-Cable Co.

• Citation: 197 Miss. 118,19 So.2d 491
• Decision Date: 23 October 1944
• Docket Number: 35661.
• Court: Mississippi Supreme Court
• Parties: CAPPS et al. v. POSTAL TELEGRAPHCABLE CO.

19 So.2d 491

197 Miss. 118

CAPPS et al. v. POSTAL TELEGRAPHCABLE CO.

No. 35661.

Supreme Court of Mississippi

October 23, 1944

Dugas Shands, of Cleveland, for appellants.

Hugh F. Causey, of Cleveland, for appellee.

GRIFFITH Justice.

Appellants on July 17, 1941, sold 600 bales of cotton to the Rex-Hanover Mills of Gastonia, North Carolina, at a specified price deliveries to be made in September and October, 1941. Appellants did not have the cotton on hand but expected to buy it from neighboring planters when gathered. Therefore on the same day appellants, through their office manager, filed a message with appellee telegraph company, at its Cleveland Miss., office, addressed to the head of appellants' firm who was then in Greensboro, North Carolina, advising of the sale with the admitted purpose, and none other, that the head of the firm, who was the only member thereof authorized to act in that particular, so far as the firm was concerned, would immediately make what is commonly called a hedging contract with appellants' brokers on the New York exchange to protect appellants against any rise in the price that appellants would have to pay in the performance of the Rex-Hanover contract.

The message was never sent, and the head of the firm did not learn of the sale until July 21, 1941, at which time the market price of cotton had advanced so as to make a difference against appellants on the 600 bales of more than $500, the amount for which appellants sued herein. On that day, to wit, July 21, 1941, the head of appellants' firm placed a hedging contract with his New York brokers and kept it in force until the cotton in kind was actually purchased by appellants at market prices, which prices never at any time afterwards were lower than on July 21st.

There is ample testimony to support the conclusion that had the telegram been sent on July 17th and had the hedging contract been made on that day, it would have been a futures contract and that only, without any real purpose or expectation that actual deliveries would be made upon it, so that under our statutes and decisions it would have been a gambling contract, unenforceable in the courts of this State, either directly or indirectly, and regardless of where made. Section 1830, Code 1930, Section 28, Code 1942; Alamaris v. John F Clark & Co., 166 Miss. 122, 145 So. 893; Ascher & Baxter et al. v. Edward Moyse & Co. et al., 101 Miss. 36, 53, 57 So. 299. That the futures contract was...