Fenner & Beane v. Phillips, 6 Div. 508.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J. PER CURIAM.
Citation222 Ala. 106,130 So. 892
Decision Date16 October 1930
Docket Number6 Div. 508.
PartiesFENNER & BEANE v. PHILLIPS.

130 So. 892

222 Ala. 106

FENNER & BEANE
v.

PHILLIPS.

6 Div. 508.

Supreme Court of Alabama

October 16, 1930


Rehearing Denied Nov. 28, 1930.

Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.

Action on common counts by C. E. Fenner and A. C. Beane, doing business as Fenner & Beane, against J. M. Phillips. From a judgment for defendant, plaintiffs appeal.

Reversed and remanded.

Benners, Burr, McKamy & Forman, of Birmingham, for appellants.

Arther Fite and Bankhead & Bankhead, all of Jasper, for appellee.

THOMAS, J.

The question for decision is the refusal of general instructions requested by plaintiff.

The history of the pertinent statutes was adverted to in Levy, Aronson & White v. Jones, 208 Ala. 104, 93 So. 733, and the change of statute to meet that decision indicated in T. S. Faulk & Co. v. Fenner & Beane (Ala. Sup.) 127 So. 673, and in editor's notes, Code of 1928, § 6819. And the rule of evidence (under section 6819, Code) is thus stated (127 So. 677): "*** Proof of the first part of the section makes out a prima facie case of illegality of all forbidden transactions, but, in order to give force and effect to the legislative recognition of the federal act as to the sales of cotton, the prima facie case made out under the first part of the section may be met and overcome by proof that the contract was made under the 'United States Cotton Futures Act,' [26 USCA § 731 et seq.] and which was done in the present case. Mullinix v. Hubbard (C. C. A.) 6 F. (2d) 109." In the Faulk Case the judgment affirmed was that rendered by the court without the intervention of a jury.

What of the judgment of the jury on the evidence in the case at bar and under the prima facie rule of evidence and declared public policy as stated (Calkins v. Vaughan, 217 Ala. 56, 114 So. 570) in section 6819, Code, and the scintilla of evidence rule that obtains? McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; Carpenter & Co. v. Naftel, 203 Ala. 487, 83 So. 471. In the opinion in T. S. Faulk & Co. v. Fenner & Beane, supra, is the specific statement that the decisions in Birmingham Trust & Savings Co. v. Currey, 175 Ala. 373, 57 So. 962, 967, Ann. Cas. 1914D, 81, and Shannon v. McClung, 210 Ala. 273, 97 So. 840, are "in conformity with this [the] opinion" upon "the common intent of the parties to the contract that no delivery would be made." In Currey's Case, supra, Mr. Justice Sayre for the court observed of the rule of evidence under the old statute that: "There is no vested right in the rules of evidence. It is clear that there was no actual delivery of cotton at any time, and that 'margins' were deposited or secured. The rule of evidence enacted in section 3351 of the Code was therefore operative in the case. And on this rule, in connection with all the circumstances in evidence, it was for the jury to say whether A. B. Hooper and Currey had a common purpose that there should be no deliveries of cotton, and, if so, whether plaintiff's assignor had knowledge of that fact." See Browne v. Thorn, 260 U.S. 137, 43 S.Ct. 36, 67 L.Ed. 171.

The pertinent statute indicated makes the proof that cotton was not delivered, and that appellee deposited margins was...

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4 practice notes
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • Mississippi Supreme Court
    • February 13, 1933
    ...in kind shall be made, the engagement is illegal, for it is a wager upon the fluctuations of the market. Fenner & Beane v. Phillips, 130 So. 892. If, however, at the time of entering into a contract for a sale of personal property for future delivery it be contemplated by both parties t......
  • Orvis Bros. & Co. v. Oliver, No. 4-5301.
    • United States
    • Supreme Court of Arkansas
    • December 12, 1938
    ...731-752 [now 26 U.S. C.A. § 1090 et seq.])." Other decisions to the same effect by the same court are Fenner & Beane v. Phillips, 222 Ala. 106, 130 So. 892, and Fenner & Beane v. Olive, 226 Ala. 359, 147 So. The Supreme Court of Georgia, in the case of Layton v. State, 165 Ga. ......
  • Fenner & Beane v. Olive, 8 Div. 476.
    • United States
    • Supreme Court of Alabama
    • March 23, 1933
    ...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 o......
  • Weatherford v. Weatherford, 8 Div. 198.
    • United States
    • Supreme Court of Alabama
    • October 16, 1930
    ...that the wife took but a life interest. The facts of the cases here adverted to sufficiently distinguish these cases from the case at bar. [130 So. 892.] The judgment will be reversed, and the cause remanded to the end that a judgment in agreement with this opinion may be rendered in the tr......
4 cases
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • Mississippi Supreme Court
    • February 13, 1933
    ...in kind shall be made, the engagement is illegal, for it is a wager upon the fluctuations of the market. Fenner & Beane v. Phillips, 130 So. 892. If, however, at the time of entering into a contract for a sale of personal property for future delivery it be contemplated by both parties t......
  • Orvis Bros. & Co. v. Oliver, No. 4-5301.
    • United States
    • Supreme Court of Arkansas
    • December 12, 1938
    ...731-752 [now 26 U.S. C.A. § 1090 et seq.])." Other decisions to the same effect by the same court are Fenner & Beane v. Phillips, 222 Ala. 106, 130 So. 892, and Fenner & Beane v. Olive, 226 Ala. 359, 147 So. The Supreme Court of Georgia, in the case of Layton v. State, 165 Ga. ......
  • Fenner & Beane v. Olive, 8 Div. 476.
    • United States
    • Supreme Court of Alabama
    • March 23, 1933
    ...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 o......
  • Weatherford v. Weatherford, 8 Div. 198.
    • United States
    • Supreme Court of Alabama
    • October 16, 1930
    ...that the wife took but a life interest. The facts of the cases here adverted to sufficiently distinguish these cases from the case at bar. [130 So. 892.] The judgment will be reversed, and the cause remanded to the end that a judgment in agreement with this opinion may be rendered in the tr......

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