Fenner & Beane v. Olive

• Decision Date: 23 March 1933
• Docket Number: 8 Div. 476.
• Citation: 226 Ala. 359,147 So. 147
• Parties: FENNER & BEANE v. OLIVE.
• Court: Alabama Supreme Court

147 So. 147

226 Ala. 359

FENNER & BEANE v. OLIVE.

8 Div. 476.

Supreme Court of Alabama

March 23, 1933

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson Judge.

Action on common counts by Fenner & Beane against J. C. Olive. Judgment for defendant, and plaintiffs appeal.

Reversed and remanded.

W. H Mitchell, of Florence, and Benners, Burr, McKamy & Forman, of Birmingham, for appellants.

A. A Williams and Almon & Almon, all of Florence, for appellee.

GARDNER Justice.

The complaint was upon the common counts. The defense rested largely upon the alleged illegality of the consideration; taking the form, to state it generally, that the cause of action arose out of gambling transactions in cotton futures by the defendant, Olive. The form of pleading this defense, as set up in pleas 2 and 3, by way of illustration, has been approved (Shannon v. McClung, 210 Ala. 273, 97 So. 840; Faulk & Co. v. Fenner & Beane, 221 Ala. 96, 127 So. 673), and while not representing the perfection of pleading, and perhaps, from a technical standpoint, subject to some criticism, yet as construed in the above cases, and merely as a matter of pleading, we see no sufficient reason to disturb the holding of these authorities.

Plea 7, however, is entirely different, and attempts to bring forward in the nature of a defense, matter in recoupment. But it was defective in more than one aspect. As has been noted, the complaint contained only the common counts. The plea omitted to aver that the contract matter to which it referred formed the basis of liability declared on in the complaint, or what in fact was the contract. Marengo Abstract Co. v. Hooper & Co., 174 Ala. 497, 56 So. 580, headnote 12. Nor does the plea aver that the plaintiffs' alleged agent was acting in the line and scope of his authority, nor that plaintiffs were under any obligation to carry out instructions from defendant of the character stated. The plea does not disclose that in fact defendant had the right to "close out" the contract. But further discussion is not deemed necessary. That the plea is defective and subject to the demurrer interposed appears to be tacitly conceded in brief of appellee's counsel, as no defense is offered in support of its sufficiency, but the argument rests solely upon the theory the ruling was error without injury, and within the influence of Supreme Court Rule 45, for the reason no evidence was offered in support thereof, and the court did not charge thereon. Henderson v. Tenn. C., I. & R. Co., 190 Ala. 126, 67 So. 414. It is argued that, therefore, the plea "dropped out of the case" and no injury resulted.

But we do not so read the record. The defendant's testimony (pages 29 and 30 of the record) makes reference to instructions to Perry in keeping with the averments of plea 7, and his refusal to follow these instructions. To what extent this testimony was the subject of comment by counsel in argument or considered by the jury in their deliberations is not made to appear. That it was given some prominence, however, would seem very probable, especially in view of the fact that appellee's refused charge 9 was based directly thereon. We are persuaded, therefore, that rule 45 cannot be here invoked to save a reversal.

Our statute (section 6819, Code 1923) and the federal statute, known as the "United States Cotton Futures Act," which is to be considered in connection therewith (chapter 13, vol. 26, USCA §§ 731-752, p. 516 et seq.), have been fully discussed in our former decisions and need no further comment. Fenner & Beane v. Phillips, 222 Ala. 106, 130 So. 892, Faulk & Co. v. Fenner & Beane, supra.

The evidence discloses that, under these authorities, any prima facie case made out by defendant was overcome by the testimony of plaintiffs to the effect that the purchase of the cotton for future delivery was in all respects in accord with the rule of the New Orleans Cotton Exchange (Arnold & Co. v. Gibson, 216 Ala. 314, 113 So. 25), and the above noted federal statute, with particular reference to section 5 thereof (26 USCA § 735).

Defendant therefore, sought by independent proof to show a "pernicious intention" (Gettys v. Newburger (C. C. A.) 272 F. 209) on plaintiffs' part, which constitutes such contract wagers. To this end, over plaintif...