Cockrell v. Thompson

• Court: Missouri Supreme Court
• Writing for the Court: PER CURIAM
• Citation: Cockrell v. Thompson, 85 Mo. 510 (Mo. 1885)
• Decision Date: 30 April 1885
• Parties: COCKRELL v. THOMPSON, Appellant.

85 Mo. 510

COCKRELL

v.THOMPSON, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Johnson Circuit Court.--HON. N. M. GIVAN, Judge

AFFIRMED.

J. M. Crutchfield for appellant.

(1) A payment, to be the foundation of a claim for contribution, must be compulsory, that is, there must be a fixed and positive obligation to pay. Pitt v. Purssord, 8 Mees. & W. 530; Davis v. Humphreys, 6 Mees. & W. 153; Lucus v. Jeffson Ins. Co., 6 Cow. 635; 2 Wait's Action and Def. 289; Frith v. Sprague, 14 Mass. 455. (2) A broker cannot recover money advanced to pay losses incurred in a gambling operation, nor commission for his services therein. Fareira v. Gabell, 89 Pa. St. 89. (3) In an action to recover for losses and commission by one dealing in grain as agent for another, if it was the intention merely to settle the difference without any actual delivery, there can be no recovery. Kolderwood v. McCree, 11 Ill. App. 543; (4) A note given by a principal to his broker for services rendered, and money advanced in making and settling gambling grain contracts, is void. Barnard v. Backhaus, 52 Wis. 593 (9 N. W. Rep. 595); Cunningham v. National Bank, 17 Central Law Journal, 470. (5) In option deals the broker stands in no better position to recover differences than the seller. In Re Green, 7 Biss. 338; Cobb v. Prell, 15 Fed. Rep. 774. (6) Contracts to purchase or sell without the intention to deliver, but merely to settle according to the state of the market at the maturity of the contract by paying differences, are void. Ramsey v. Berry, 65 Me. 570; Story v. Soloman, 71 N. Y. 520; Smith v. Thomas, 97 Pa. St. 278; 13 Cent. Law Journal, 35; Grizelwood v. Blane, 2 J. Scott, 11 C. B. (Eng. C. L.) 525; Bruas Appeal, 5 P. F. Smith, 299; Tony v. Foot, 95 Ill. 99; Wyman v. Fisk, 3 Ill. 238; Ex parte Young, 6 Biss. 53; 16 Cent. Law Journal, 225; Pickering v. Cease, 79 Ill. 328; Lyon v. Culbertson, 25 Am. Rep. 349; Lyon v. Culbertson, 83 Ill. 33; Rourk v. Short, 34 Eng. L. and Eq. 219; Cassort v. Hinman, 1 Bos. 207; Biglow v. Benedict, 70 N. Y. 70; Evringham v. Meigham, 15 Cent. Law Journal, 332; Rudolf v. Winters, 7 Nev. 125; Kent v. Miltenberger, 13 Mo. App. 508; Killpatrick v. Bonsall, 72 Pa. St. 155; Yerks v. Solomon, 18 N. Y. Sup. Ct. (11 Hun) 473; Article in 16 Central Law Journal, 225, and authorities there cited; Gregory v. Wendell, 38 Mich. 337; 33 Am. Rep. 390. (7) One of two joint defendants may plead by way of set-off a demand due him from the plaintiff. Kent v. Rogers, 24 Mo. 306. (8) One partner cannot maintain an action at law against the other for a payment made on account of a partnership liability until after a dissolution and settlement. Story on Partnership (4 Ed.) sec. 221, p. 354; Smith v. Smith, 33 Mo. 557; Moran v. Martin, 25 Mo. 360; Burns v. Nottingham, 60 Ill. 531. (9) In an action for money paid, defendant may show that he expressly notified the plaintiff not to pay the claim, and if he pays it against such notice, he cannot recover the amount as for money paid at defendant's request or to his use. 4 Wait's Action & Defences, page 460 and 467, section 1, and cases cited; Barnum v. Lithauer, 1 Abb. Ct. App. (N. Y.) 99; 4 Keyes, 317. (10) In an action for money paid, where there is no express request to pay it, the plaintiff must allege and prove a state of facts from which the law will imply a request and the requisite promise. 4 Wait's Action and Defences, 450 and 453; R. S. 1879, p. 60, sec. 3511.S. P. Sparks for respondent.

(1) The petition states a cause of action. It alleges that plaintiff and defendant jointly bought and sold wheat, etc., that the transactions resulted in a loss; that it was done through their agents and that plaintiff paid the loss to the agents. (2) The answer does not charge that the transactions mentioned in it were gaming contracts. In order that a contract be illegal because a gambling one, it must be the intention of both parties that it be settled by the payment of differences. Lehman v. Strasburger, 3 Cent. Law Jour. 134; Gregory v. Wendell, 40 Mich. 432. The second instruction given for plaintiff correctly declares the law. Buckner v. Ries, 34 Mo. 357.

PER CURIAM.

John J. Cockrell sued Waddy Thompson for $681.25, and interest from date of de mand. In his petition he charged that on October 3, 1881, he and defendant jointly purchased, in open market in Toledo, Ohio, ten thousand bushels of number two red winter wheat, to be delivered at any time during November of said year, in elevator in said city, at the price of $1.51 3/4 per bushel; that on October 3, 1881, they jointly sold in open market in St. Louis, Mo., ten thousand bushels of wheat of the same grade at $1.55 per bushel, to be delivered in elevators in said city any time in December, 1881; that on October 17, 1881, they jointly bought in open market in St. Louis ten thousand bushels of wheat, to be delivered in elevators in said city at any time in December, 1881, at the price of $1.52 1/2 per bushel for five thousand bushels, and $1.52 3/4 per bushel for five thousand bushels; that on or about October 29, 1881, they jointly sold in open market in Toledo, ten thousand bushels of wheat, to be delivered in elevators of said city, any time in November, 1881, at $1.36 1/4 per bushel. That the said business was done through their factors and commission merchants, Cole Brothers, of St. Louis. That the net losses of plaintiff and defendant in said transactions amounted to $1,300.00, and the commissions of Cole Brothers amounted to $62.50. That plaintiff paid the $1362.50 to said Cole Brothers, commission merchants, and that defendant is liable for, and should pay plaintiff half that sum, which payment was demanded and refused, etc.

The answer denied knowledge or information, as to whether or not plaintiff paid the $1362.50. It further denied that plaintiff and defendant were indebted to Cole Brothers; alleged that Cole Brothers were liable to plaintiff and defendant in a large amount, and also liable in a large amount to defendant individually, and that plaintiff and defendant jointly, and defendant individually, had good defences to any action that Cole Brothers could have brought against them, or either of them, which plaintiff well knew, and that defendant is not liable to plaintiff. The answer further alleged that plaintiff and defendant were partners, under the firm name and style of Cockrell & Thompson, for the purpose of dealing in “options,” and that they had so dealt largely, and that the business of the partnership was unsettled, and, therefore, the action ought not to be maintained.

Another defence was “that the wheat alleged in the petition to have been purchased and sold by plaintiff and defendant, was never delivered to them, or by them to any one else, but that the same was contracted for by them through said Cole Brothers, with the understanding and intention of said plaintiff and defendant, and the said Cole Brothers, that none of said wheat, and no part thereof, was ever to be delivered to, or accepted by these parties, or to be delivered by them to any one else, but that they were merely to adjust and pay the differences in the market value thereof, according to the rise and fall of the market, and that, therefore, if said Cole Brothers had, or pretended to have, any claim or demand against the plaintiff or defendant, on account of the alleged purchase and sale of said wheat, the said claim was based upon a transaction that was contrary to public policy, and was illegal and void,” and that Cockrell knew this, and that defendant had other good and valid defences against such claim, and Cockrell would not allow the use of his name in making a defence, or give the defendant the opportunity to make it, but was the attorney of Cole Brothers, in a suit defendant had brought against them in the St. Louis circuit court, etc. The reply was a general denial.

On the trial by the court, sitting as a jury, plaintiff was, against defendant's objection, permitted to amend his petition by interlineation of the words, “to said Cole Brothers, commission merchants,” so as to allege a payment to Cole Brothers of the $1,300 as well as the $62.50, the petition not before showing to whom the $1,300 was paid. The evidence is not preserved in the record, but it is said that the parties introduced evidence, the plaintiff's tending to prove the allegations of the petition, and defendant's tending to prove the allegations of the answer; and then plaintiff introduced evidence in rebuttal. Plaintiff recovered judgment and defendant appealed.

I. The defendant objected to the introduction of any evidence, on the ground that the petition stated no cause of action. The plaintiff then asked and obtained leave to amend by interlineation, as before stated. Defendant objected to the amendment, and when it was allowed over his objection, asked for a continuance, because the amendment made a material alteration in the petition, and he had no opportunity to answer and defend against the same. The court refused the continuance, and in its action in those particulars we find no error.

II. We do not concur in defendant's conclusion that the petition states no cause of action.

III. For plaintiff the court in effect declared that he could recover as he prayed, if he paid Cole Brothers the $1,362.50 on the transactions stated in the petition, unless Cole Brothers were indebted to plaintiff and defendant jointly and plaintiff had knowledge of such indebtedness at the time of his said payment, or, unless said indebtedness to Cole Brothers grew out of partnership transactions between plaintiff and defendant, and at the commencement of the action there remained unsettled of the partnership business other matters than the single item of the amount paid Cole Brothers. And for defendant the court declared there could be no recovery unless plaintiff and defendant were jointly indebted to Cole Brothers at the date of payment, and such indebtedness was...