Fenner & Beane v. Phillips
Citation | 222 Ala. 106,130 So. 892 |
Decision Date | 16 October 1930 |
Docket Number | 6 Div. 508. |
Court | Supreme Court of Alabama |
Parties | FENNER & BEANE v. PHILLIPS. |
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.
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): ." 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: 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 evidence-"prima facie evidence"-that the contract was void (section 6819, Code); not being within the exception of one being engaged in the business of manufacturing or wholesale merchandising, purchasing, or "sale of the necessary commodities required in the ordinary course of their business." Section 6818, Code.
In Marengo Abstract Co. v. Hooper & Co., 174 Ala. 497, 503, 56 So. 580, 582, this court said of the intention of the parties:
So, in Allen v. Caldwell, 149 Ala. 293, 296, 42 So. 855 856, it is declared: " ...
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Alamaris v. Jno. F. Clark & Co
... ... fluctuations of the market ... Fenner ... & Beane v. Phillips, 130 So. 892 ... If, ... however, at the time of entering into ... ...
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Orvis Bros. & Co. v. Oliver
...the United States Cotton Futures Act (26 USCA, §§ 731-752)." 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. 147 So. 147. The Supreme Court of Georgia, in the case of Layton v. State, 165 G......
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Fenner & Beane v. Olive
... ... 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 ... ...
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