Gray v. Robinson

• Decision Date: 18 January 1909
• Docket Number: 13,604
• Citation: 48 So. 226,95 Miss. 1
• Court: Mississippi Supreme Court
• Parties: WILLIAM C. GRAY v. SAMUEL H. ROBINSON

48 So. 226

95 Miss. 1

WILLIAM C. GRAY v. SAMUEL H. ROBINSON

No. 13,604

Supreme Court of Mississippi

January 18, 1909

FROM the circuit court of Alcorn county, HON. EUGENE O. SYKES Judge.

Gray appellant, was plaintiff in the court below; Robinson appellee, was defendant there. From a judgement in defendant's favor, the plaintiff appealed to the supreme court.

One George Hazard, doing business as the Corinth Brokerage Company, was engaged in buying and selling cotton for future delivery. Among his customers was Robinson, appellee, who had numerous dealings, extending over four years, with the company. In all the dealings between these parties no actual cotton was ever received or delivered by either of them, but all settlements were made on the difference between the contract price and the market price at the time of settlement. On June 26, 1906, Robinson's losses amounted to $ 2,600, for which he gave Hazard his notes, payable to bearer, one of which, for $ 1,000, Hazard assigned for value received to Gray, the appellant, who, after Robinson's refusal to pay the same, instituted this suit thereon. Defendant pleaded the general issue, and a special plea setting forth the fact that the transactions in the settlement of which said notes were given were gambling transactions, condemned by Code 1892, § 2117, in force at the time said transactions were had. Plaintiff demurred to the special plea; his demurrer was overruled, and issue was then joined thereon. After hearing all the testimony for both plaintiff and defendant, the court below granted a peremptory instruction for defendant.

The first assignment of error was predicated of the action of the court below in overruling appellant's demurrer to the special plea, because Gray was an innocent purchaser for value of the note sued on, a fact not denied by the plea. The second assignment of error was predicated of the granting of the peremptory instruction. In support of the second assignment of error, appellant relied upon the testimony of Hazard that either of the parties had the right to demand the actual cotton bought and sold, and the fact that on the confirmation of the transactions there was a printed stipulation as follows: "We receive no orders except with the understanding that the actual delivery of the property bought or sold is in all cases contemplated and understood," but the witness did not claim that either party contemplated an actual delivery or expected it to be demanded or made. Robinson denied that there was any intention to deal with the actual commodity.

In all his dealings, Hazard, the Corinth Brokerage Company extending over more than four years, had never delivered or received a bale of cotton to or from any customer.

Judgment affirmed.

Lamb & Johnson, for appellant.

It is the province of the jury to "determine from the testimony what the intent of the parties was in reference to the delivery of the cotton bought and sold." Clay v. Allen, 63 Miss. 426.

No matter how thoroughly convinced the court was of what was intended between the parties, still the court cannot substitute its opinion for that of the jury. This doctrine is too well established to need any citations to sustain it. What the jury would have decided after having heard all of the facts is the question, and it was for them, and them alone, to determine. The court can no more invade the province of a jury than a jury can invade the province of a court. Each bears its particular and special relation to the other. The main province of the jury is to determine just such questions as were presented in this case, and which the court in this case refused to allow them to do. Counsel for appellee say that the case of Western Union Telegraph Company v. Littlejohn, 72 Miss. 1025, 18 So. 418, is easily distinguishable from the case at bar, for the reason, as they say, the dealings were for the present and not for the future delivery. Counsel for appellee, in their zeal to present as strong a case as possible for their client, lose sight of the fact that a sale for future delivery of any commodity is as binding and as valid as any contract can be made unless the contract is tainted with the word "future" in its technical sense, which means gambling, as is clearly shown in the case above cited.

Mitchell & Clayton, for appellee.

"A contract violative of public policy, or of a positive rule of law, or against good morals, will not be enforced, even at the suit of an innocent transferee, although it be evidenced by a promissory note payable to bearer." Montjoy v. Delta Bank, 76 Miss. 402, 24 So. 870.

It is the contention of counsel for appellant that from the mere fact that Hazard testified that he...