Cohn v. Brinson, 18370

CourtMississippi Supreme Court
Writing for the CourtSTEVENS, J.
Citation112 Miss. 348,73 So. 59
Decision Date11 December 1916
Docket Number18370
PartiesCOHN ET AL. v. BRINSON

73 So. 59

112 Miss. 348

COHN ET AL.
v.
BRINSON

No. 18370

Supreme Court of Mississippi

December 11, 1916


October, 1916

APPEAL from the chancery court of Lincoln county, HON. LUTHER E. GRICE, Special Chancellor.

Bill in equity by Mrs. Allie V. Brinson against Louis Cohn and L. H. Baggett, assignees, and the Commercial Bank and Trust Company. Decree for the complainant in part, and defendants prosecute a direct appeal, while complainant prosecutes a cross-appeal.

Appellee was complainant in the court below, and appellants defendants. The opinion states the facts. The laws quoted in the opinion contain the following provisions.

Sections 2301, 2302, and 2303, Code of 1906, are as follows:

2301. Any sale, mortgage, transfer, or conveyance of any estate, real or personal, to any person or to another for his use or benefit, or in any manner to satisfy or secure money or other thing won, or any part thereof, or to secure or satisfy any money or other thing lent or advanced on any consideration, foundation, or purpose mentioned in the last section, or any part thereof, shall inure to and vest in the wife and children of said mortgager, seller, vendor, bargainor, or lessor, the whole estate, title, and interest of such person sold, mortgaged, bargained, transferred, or conveyed, as though such person had died intestate. And the parties to any action founded on any contract or transaction within this chapter, shall be compelled to answer any bill of discovery touching the same.

2302. If any person, by playing at any game whatever, or by betting on the sides or hands of such as do play at any game, or by betting on any horse-race or cockfight, or at any other sport or pastime, or by any wager whatever, shall lose any money, property, or other valuable thing, real or personal, and shall pay or deliver the same or any part thereof, the person so losing and paying or delivering the same, or his wife or children, may sue for and recover such money, property, or other valuable thing so lost and paid or delivered, or any part thereof, from the person knowingly receiving the same, with costs.

2303. 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 commodity is to be actually delivered in kind and the price paid, shall not be enforced by any court; nor shall any contract of any kind commonly called "futures" be enforced, nor shall a contract in this section mentioned be a valid consideration, in whole or in part, for any promise or undertaking and any person who shall make any such contract and by reason thereof lose any money, property or other valuable thing, real or personal, and shall pay or deliver the same or any part thereof, may, or his wife or children may sue for and recover such money, property or other valuable thing so lost and paid or delivered, or any part thereof, from the person knowingly receiving the same, either for himself or as agent for another, together with all costs of suit.

Section 9 of chapter 118 of the Laws of 1908 is as follows:

Sec. 9. That the parents or parent, wife, child or children, executor or administrator of the person sustaining a loss, . . . may, within five years from the date such loss was sustained, recover by suit in the circuit court or chancery court, the amount so lost, by the person making such contract, which sum shall be considered as liquidated damages to the person suing therefor, from the broker, agent or intermediary who negotiated such transaction.

This suit originated in the chancery court of Lincoln county by a bill in equity filed by Mrs. Allie V. Brinson, appellee and wife of T. H. Brinson, to recover from the Commercial Bank & Trust Company certain sums of money alleged to have been lost by the husband of complainant in gambling on cotton futures, and to cancel a certain mortgage executed by Mr. and Mrs. Brinson to the bank as security for the balance of an indebtedness of one thousand seven hundred seventy-four dollars and ninety-four cents due by the husband to the bank. Appellants are the assignees and receivers of the Commercial Bank & Trust Company. The mortgage in question was given December 18, 1913, in renewal of a prior mortgage securing a larger indebtedness, upon which large payments had been made, and embraced in the mortgage is the homestead of Mr. Brinson, title to which is in his name, and also a certain parcel of real estate standing in the name of Mrs. Brinson. The bill alleges that the said bank knowingly lent or advanced Mr. Brinson large sums of money at different times to buy cotton futures and to provide the necessary margins on his investments upon the cotton exchange of New Orleans, La.; that the indebtedness secured by the mortgage sought to be cancelled was founded upon an illegal consideration; that the contracts for the repayment of the money were void at law and in equity; and the mortgage in question should be canceled. The bill claims a right also to recover the aggregate sum of four thousand six hundred dollars alleged to have been lost by the husband in gambling on cotton futures through the said Bank & Trust Company. Answer was filed by appellants, and the cause heard on bill, answer, and oral testimony. The special chancellor who heard the case permitted the complainant to recover the aggregate sum of two thousand two hundred and fifty-one dollars and twenty cents, which he found to have been paid by Mr. Brinson to the Bank & Trust Company on gambling transactions; but the chancellor declined to grant the full relief prayed for, and declined to cancel the mortgage. From this final decree appellants, as the defendants in the court below, prosecute a direct appeal, and appellee prosecutes a cross-appeal.

It is the contention of appellants that complainant was not entitled to recover anything under the facts of this record, while appellee, as...

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7 practice notes
  • Odom v. State, 31634
    • United States
    • United States State Supreme Court of Mississippi
    • May 6, 1935
    ...variance ever called to the attention of the trial court after verdict. This cannot be raised here for the first time. Smith v. State, 112 Miss. 348, 72 So. 929; Horn v. State, 148 So. 310. The statement that the indictment does not charge intent is met by several decisions of this court, t......
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...guise may clothe the transaction. Gray v. Robinson, 48 So. 227; S. M. Weld & Company v. Austin, 65 So. 247; Cohn et al. v. Brinson, 73 So. 59. The buying of cotton futures is a wager. Clay v. Allen & Co., 61 Miss. 426; Campbell v. National Bank. 74 Miss. 526. 21. So. 400. 23 So. 25;......
  • Stroud v. Loper, 34181
    • United States
    • Mississippi Supreme Court
    • October 14, 1940
    ...Williams, Smithwick & Co. (Miss.), 121 So. 817; Faulk v. J. N. Alexander Mercantile Co., 138 Miss. 21, 102 So. 483; Cohn v. Brinson, 112 Miss. 348, 73 So. 59; Ascher & Baxter v. Moyse, 101 Miss. 36, 57 So. 298; Isaacs v. Silver Parry & Co., 87 Miss. 185, 39 So. 420; Campbell v. ......
  • Wells v. Neill, 29682
    • United States
    • United States State Supreme Court of Mississippi
    • January 4, 1932
    ...difference in price and where there was no intention of the parties to deliver the commodities covered by the contract. Conn v. Brinson, 112 Miss. 348. The intention of both parties must be that the commodities were not to be delivered. Clay v. Allen, 63 Miss. 426; Western Union v. Littlejo......
  • Request a trial to view additional results
7 cases
  • Odom v. State, 31634
    • United States
    • United States State Supreme Court of Mississippi
    • May 6, 1935
    ...variance ever called to the attention of the trial court after verdict. This cannot be raised here for the first time. Smith v. State, 112 Miss. 348, 72 So. 929; Horn v. State, 148 So. 310. The statement that the indictment does not charge intent is met by several decisions of this court, t......
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...guise may clothe the transaction. Gray v. Robinson, 48 So. 227; S. M. Weld & Company v. Austin, 65 So. 247; Cohn et al. v. Brinson, 73 So. 59. The buying of cotton futures is a wager. Clay v. Allen & Co., 61 Miss. 426; Campbell v. National Bank. 74 Miss. 526. 21. So. 400. 23 So. 25;......
  • Stroud v. Loper, 34181
    • United States
    • Mississippi Supreme Court
    • October 14, 1940
    ...Williams, Smithwick & Co. (Miss.), 121 So. 817; Faulk v. J. N. Alexander Mercantile Co., 138 Miss. 21, 102 So. 483; Cohn v. Brinson, 112 Miss. 348, 73 So. 59; Ascher & Baxter v. Moyse, 101 Miss. 36, 57 So. 298; Isaacs v. Silver Parry & Co., 87 Miss. 185, 39 So. 420; Campbell v. ......
  • Wells v. Neill, 29682
    • United States
    • United States State Supreme Court of Mississippi
    • January 4, 1932
    ...difference in price and where there was no intention of the parties to deliver the commodities covered by the contract. Conn v. Brinson, 112 Miss. 348. The intention of both parties must be that the commodities were not to be delivered. Clay v. Allen, 63 Miss. 426; Western Union v. Littlejo......
  • Request a trial to view additional results

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