Flowers v. Bush & Witherspoon Co.

• Decision Date: 17 December 1918
• Docket Number: 3248.
• Citation: 254 F. 519
• Parties: FLOWERS v. BUSH & WITHERSPOON CO.
• Court: U.S. Court of Appeals — Fifth Circuit

254 F. 519

FLOWERS v. BUSH & WITHERSPOON CO.

No. 3248.

United States Court of Appeals, Fifth Circuit.

December 17, 1918

L. T Williams and N. B. Williams, both of Waco, Tex., for plaintiff in error.

J. D Williamson, of Waco, Tex., for defendant in error.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

GRUBB District Judge.

This was an action in the District Court for the breach of two contracts for the purchase and sale each of 100 bales of cotton for future delivery. The plaintiff in error, defendant in the District Court, was the seller, and defendant in error, plaintiff in the District Court, was the purchaser. The breach was alleged by the plaintiff to have consisted in the failure of the defendant to deliver the cotton, as called for by the two contracts. The defendant set up as a defense to the first contract (that of May 11, 1916) the Texas statute (articles 538 and 539, Penal Code), which prohibits the making of contracts where no actual delivery of the cotton is contemplated by the parties, and to the second contract (that of June 21, 1916) that it was canceled by the agent of the purchaser shortly after it was entered into by the parties. The District Judge directed a verdict for the plaintiff, under both of the contracts, for the amount of the differences between the contract prices and the market prices at the dates of the respective deliveries. The court held that there was no evidence that at the time of entering into the first contract the parties to it intended to enter into a wagering or gambling contract, and that there was no evidence that the plaintiff's agent, Hooper, who it was contended had agreed to the cancellation of the second contract at defendant's request, had any authority from the plaintiff to make such an agreement.

The plaintiff in error complains of the action of the District Judge in refusing to permit him as a witness in his own behalf to answer this question:

'Mr. Flowers, was it your intention, at the time you made the first contract with Mr. Hooper, that actual cotton was to be delivered?'

The grounds of objection were that the question was leading, and because the secret intention of one party, not expressed to the other, was immaterial. The witness would have answered, if permitted, that it was not his intention, at the time he made the first contract, to deliver actual cotton to the plaintiff. The District Court properly exercised its discretion in refusing to permit the witness, who was a party and solely interested in the result, to answer a question which suggested the answer desired by counsel, and which called for an undisclosed state of mind of the witness upon a subject-matter which was vital to the case, and upon which it was not possible to contradict him. It is not clear that the expected evidence was competent, had the question been properly framed. The issue was whether the parties to the trade, when it was made, contemplated that there was to be an actual future delivery of the cotton. Anything said or done by either party, brought home to the other party, which reflected his intention as to delivery, would undoubtedly be material. The offer did not go to this extent. The uncommunicated intention of either or both parties would fall short of showing a gambling transaction. It must have appeared that the parties, mutually, either expressly or impliedly understood that no delivery was to be made or accepted. Showing a secret intent upon the part of one was not even competent as a step to show such a mutual understanding.

The plaintiff in error also complains of the District Judge's refusal to permit his witness, H. S. Hooper, to answer this question 'You settled those contracts (referring to...