G. G. Edgerton & Son v. J. T. Edgerton & Bro.

• Decision Date: 12 October 1910
• Citation: 69 S.E. 53,153 N.C. 167
• Parties: G. G. EDGERTON & SON v. J. T. EDGERTON & BRO.
• Court: North Carolina Supreme Court

69 S.E. 53

153 N.C. 167

G. G. EDGERTON & SON v. J. T. EDGERTON & BRO.

Supreme Court of North Carolina

October 12, 1910

Appeal from Superior Court, Johnston County; O. H. Allen, Judge.

Action by G. G. Edgerton & Son against J. T. Edgerton & Bro. From a judgment for defendants, plaintiffs appeal. Affirmed.

An answer in an action for breach of contract to sell and deliver cotton, which alleges that it was not intended that the cotton should be delivered, though so stated in the contract, but that the contract should be discharged by the payment of the amount gained by the one or lost by the other determined by the rise or fall of the market price of cotton sufficiently states the defense of illegality of the contract as against a demurrer.

Aycock & Winston, Abell & Ward, and Chas. Edgerton, for appellants.

W. J Hooks and N.Y. Gulley, for appellees.

WALKER J.

This action was brought by the plaintiffs to recover the sum of $2,205 as damages for the breach of a contract to sell and deliver to the plaintiffs 100 bales of cotton weighing 45,000 pounds. By the contract, which was in writing and dated June 9, 1909, the defendants agreed to sell and deliver the cotton for 10 1/10 cents per pound, delivery to be made in the months of September, October, November, and December of the same year, with a stipulation that, if either of the parties failed to perform the contract, they should pay to the other a forfeit of $500. The defendants in their answer substantially allege that it was not intended that the cotton should be actually delivered, although so stated in the contract, but that the contract should be discharged by the payment of the amount gained by the one or lost by the other, to be determined by the rise or fall of the market price of cotton, the maximum amount to be paid not to exceed $500, and that the contract is therefore void.

The sole question involved is the legality of the contract. The plaintiff contends that the defendants, in their answer, do not set up their defense sufficiently. The pleading may not be drawn with technical accuracy, but, construing it liberally, we think the defense is sufficiently, even if defectively, stated, and in this respect it is at least good as against a demurrer. Besides, there was no objection to the issue. Hendon v. Railroad, 127 N.C. 114, 37 S.E. 155. The court submitted an issue to the jury as to whether it was intended by the parties that there should be an actual delivery of the cotton, and charged that if the parties did not contemplate an actual delivery of the cotton, but merely intended that the payment of the $500 by the one party or the other should depend upon a rise or fall in the price of cotton, this contract would be illegal and void as founded upon a gaming consideration, but, if an actual delivery of the cotton was intended, then it would be valid and enforceable. The jury under this instruction returned a verdict for the defendant. The plaintiff excepted and appealed from the judgment.

The form of the contract is not conclusive in determining its validity, when it is assailed as being founded upon an illegal consideration, and as having been made in contravention of public policy. If,...