Champion v. Wilson & Co.

• Decision Date: 30 September 1879
• Citation: 64 Ga. 184
• Court: Georgia Supreme Court
• Parties: Champion. v. Wilson & Company.

64 Ga. 184

Champion. v. Wilson & Company.

Supreme Court of the State of Georgia

(September Term, 1879.)

Contracts. Laws. Collaterals. Stock Evidence. Custom. Partnership. New trial. Before Judge Simmons. Bibb Superior Court. April Term, 1879.

Wilson & Company sued Champion on an account for money advanced by them for the purpose of purchasing "cotton futures" in New York for him, and for commissions due for making such contracts, etc.

Cthampion pleaded as follows:

1s. That it was a contract governed by the laws of New York, and was null and void under the laws of that state against betting, etc.

2d. That before the advances were all made, he deposited stock of the South Carolina Railroad Company with Wilson & Company, which was worth about $14,000.00 more than he owed them when their account fell due, and that, according to the general custom in New York, it was the duty of Wilson & Company to have sold said stock, for their reimbursement within a reasonable time after said account became due; that the stock has now become worthless, or nearly so.

3d. That Wilson & Company did, in fact, without the knowledge of Champion, convert said stock by applying to the company and having new certificates of stock issued to them in their own name, and surrendering to the company the certificates belonging to and deposited by Champion, and that when this was done said stock was worth several thousand dollars more than Wilson & Company's claim against him. 4th. That some time after this account had matured Wilson *& Company (who held a similar claim for amuch larger amount against W. L. Ellis & Brother) applied to him through Ellis & Brother to allow them to transfer his account to that of said Ellis & Brother, and to let them hold his stock as collateral security for the whole account so merged, they (Wilson & Company) looking to Ellis & Brother, and not to Champion, for the payment of the entire indebtedness. To this, for a special consideration agreed on between Champion and Ellis & Brother, Champion consented; that when this arrangement was proposed and agreed to, Champion\'s stock was worth some $12,000.00 or $14,000.00 more than his individual account amounted to, etc.

The evidence was conflicting on almost all the points in issue, especially in regard to the custom of New York brokers in connection with collaterals. It was also claimed by plaintiffs, and denied by defendant that he was a partner of Ellis & Brother in these transactions.

The jury found for plaintiffs. Defendant moved for a new trial on the following, among other grounds:

(1). Because the court refused to charge the following request: "The law of New York governing this case makes void a contract where a broker there was employed to purchase for another what are known as 'cotton futures, ' provided the evidence satisfies the jury that such 'cotton futures' were known at the time by both parties as simply a wager or speculation on the rise and fall of the price of cotton."

(2). Because the court refused to charge the following request: "If plaintiffs, without the knowledge of the defendant, surrendered to the South Carolina Railroad Company certificates of the stock of that company which had been deposited with the plaintiffs as collateral, and applied for and obtained from said company new certificates for the same amount of stock in said company, issued to and in the name of said plaintiffs, this was a conversion of the stock so deposited, and charged the plaintiffs with the value of said *stock at the time said new certificates were issued to the plaintiffs, unless defendant, after knowing of said conversion, waived his right to charge the plaintiffs with the then value of said stock."

(3). Because the court charged as follows: " if you believe from the evidence that such was the universal custom (i. e. to sell collaterals to pay losses when they occurred), then it did enter into the contract, and plaintiffs should have sold to protect themselves. The custom must have been universal; it must have been the custom in every transaction of this sort in New York. If some merchant or broker in New York failed to carry out this custom, then it was not a universal custom. Universal means the whole—every one. It differs from the general custom. General means the majority or greater number. If you believe from the evidence that it was not a universal custom, then it did not enter into the contract, and the plaintiffs were not compelled to sell on the happening of the loss."

(4). Because the court charged as follows: "The plaintiffssay that if you believe that such a merger (of defendant\'s liability into that of Ellis & Brother) was agreed upon and carried into effect, that the defendant is still liable, for they say that he was either a partner of Ellis & Brother, or held himself out to them that he was a partner, or acted in such a way that he induced them to believe that he was a partner. You have heard the evidence in this case, and must say whether he was a partner or not, or whether he acted in such a way as to make them, the plaintiffs, believe that he was a partner. If you believe from the evidence that he was a partner, or acted so as to make plaintiffs believe that he was a partner, then if the merger of the account did take place, it does not relieve Champion from his liability, if he was originally liable."

(5). Because the verdict was contrary to law and the evidence.

The motion was overruled, and defendant excepted. For the other facts, see the opinion.

*L, anier & Anderson, for plaintiff in error.

Jno. P. Fort; N. J. Hammond, for defendants.

JACKSON, Justice.

In this case Wilson & Company sued Champion for money expended by them for him in the purchase of cotton futures in the city of New York, where the contract was made and where it was to be executed. A verdict was rendered for the plaintiffs, a motion was made for a new trial on many grounds, it was overruled, and the defendant excepted.

There are many grounds set out in the motion, but all were abandoned or not urged here except a few which we proceed to consider.

1. The contract being made and to be carried out in New York, it is urged that New York and not Georgia law should prevail, Code, sec. 8; 38 Ga, 132; 40 Ib., 553; but the defendant gave to the court below no evidence of any law of New York so far as the record discloses. In order to take a case out of our own law, there must be evidence before the court that tried the case of the law of the other state, and the record must show its introduction in evidence. It does not appear from this record to have been introduced as evidence at all. Probably the law of this state, if the contract had been made and was to be performed here, would uphold it. 45 Ga., 501; 59 Ib., 25. Possibly the facts here, as insisted upon by the defendant in his testimony, might make a case too strong and too much akin to betting for our own statute, and might take this case out of the principle controlling those. See Code, sec. 2638. If it were an original question, one might well hesitate.

However this may be, the law of New York entered into this contract, as it was made and was to be executed there, and our courts will enforce it, whatever it may be; and this contract must stand or fall as the test of that law is applied to it. Butas it was not before the superior court, we can not review any judgment of that court thereon. That court *said nothing about it—perhaps for this reason. 57...