Glass v. Childs

• Decision Date: 25 July 1911
• Docket Number: 2,861.
• Citation: 71 S.E. 920,9 Ga.App. 520
• Parties: GLASS v. CHILDS.
• Court: Georgia Court of Appeals

71 S.E. 920

9 Ga.App. 520

GLASS v. CHILDS.

No. 2,861.

Court of Appeals of Georgia

July 25, 1911

Syllabus by the Court.

It being undisputed that the note and the check sued upon were given in settlement for the original margin and profits in a gambling contract or speculation in cotton futures, the verdict for the defendant was right, and the court did not err in refusing a new trial, especially as the alleged newly discovered testimony tended only to further show that the dealings between the plaintiff and defendant were of a character forbidden by law. The aid of courts of justice cannot be invoked to enforce alleged rights which depend upon contracts outlawed by sound public policy and good morals. The plaintiff having admitted upon the trial that the indebtedness he sought to recover was for money claimed by him as his share of a deal in cotton futures, in which the defendant and himself were to share jointly in the profits and loss, the verdict for the defendant was demanded, and, if there had been errors in the trial, they would be immaterial.

Error from City Court of Covington; W. H. Whaley, Judge.

Action by J. B. Glass against W. W. Childs. Judgment for defendant and plaintiff brings error. Affirmed.

C. C King, for plaintiff in error.

Middlebrook Rogers & Knox, for defendant in error.

RUSSELL J.

Glass brought suit against Childs upon a note and a check. Childs admitted the execution of both instruments. He admitted a refusal to pay the check, and that the bank upon which the check was drawn had not paid it upon presentation. He set up two defenses: One was that the note and check were without consideration; that at the time he gave the note he had forgotten, or was uncertain, whether he had paid the plaintiff what he owed him or not, and, not being willing to swear that he had paid him, he executed the papers in question, but thereafter he found a bank check which he had given to Glass, and which had been paid by the bank to Glass which antedated the note and check sued upon, and which represented identically the same transaction. Upon that ground be claimed that his debt to Glass had actually been paid before he gave the note and check. It is alleged, however, in this plea, that "in the fall or winter of 1905 plaintiff asked defendant to join him in buying 100 bales of cotton futures, which defendant did, plaintiff and defendant each one putting up $100 as a margin to cover loss on said futures, and the contract was taken in defendant's name, and the note and draft or check sued on were given the plaintiff for his $100 so advanced as a margin on said cotton future contract, and for his part of the profits thereon, and the interest on the money up to the time of giving said note," and for this reason the defendant pleaded that both the note and the check were based on an illegal contract and speculation scheme, and cannot be enforced or collected out of him, and that the consideration of the note is illegal, void, and contrary to public policy, because it is a part of said illegal contract. It will thus be observed that each of the pleas in fact set up a total failure of consideration-the one, because the debt was alleged to have been paid by mistake before the note was given; the other, because the consideration was one not recognized nor tolerated by law.

There was conflict in the evidence with regard to the check said to be given in settlement of the differences between the plaintiff and defendant, but there was no conflict as to the nature of the...