Henry Hentz & Co. v. Booz
| Decision Date | 24 January 1911 |
| Docket Number | 2,714. |
| Citation | 70 S.E. 108,8 Ga.App. 577 |
| Parties | HENRY HENTZ & CO. v. BOOZ. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
There was no error in refusing a new trial. The decision of this case is controlled by the ruling in the case of Anderson v. Holbrook, 128 Ga. 233.57 S.E. 500, 11 L.R.A. (N. S.) 575. If a broker is privy to a wagering contract, and brings the parties together for the purpose of such a contract, and advances money for margins in furtherance of the transaction he cannot recover it.
The defense that the consideration of a note is illegal or immoral introduces an exception to the usual rule that parol evidence is not admissible to vary the terms of the written contract, in so far as may be necessary to test the verity and bona fides of the writings bearing wholly upon the consideration. Where the defense that the consideration of a note or other obligation in writing is illegal or immoral parol evidence is admissible to explain the true nature of the transaction between the parties, although it may be in conflict with the writings upon the same subject. It is often the only means by which the truth can puncture a skillfully contrived device.
Parol evidence is admissible to show the true consideration of a contract which does not specify what is the consideration. In a case in which the note sued upon does not express the consideration, evidence as to what was the true consideration cannot vary the terms of the writing, though it may alter its effect.
The error of the court in excluding some of the testimony offered in behalf of the plaintiff was harmless, for the reason that ample evidence to the same point was permitted.
Under the evidence submitted, it is unquestionable that the consideration of the note was illegal and immoral, being money knowingly advanced by the plaintiffs in active participation and furtherance of speculations in cotton futures, that actual delivery of the cotton was not an essential feature of the contracts contemplated at the time they were entered into, and that the rule of the New York Cotton Exchange upon that subject was a mere subterfuge to cover the true nature of the transaction. There was no error in refusing a new trial.
(Additional Syllabus by Editorial Staff.)
The transaction termed "dealing in futures" is one whereby one person agrees to sell a commodity at a certain time in the future for a certain price, the other party agreeing to pay such price, with knowledge that the first party has none of the commodity to deliver at the time, but with the understanding, that when the time arrives for delivery, settlement is to be had in differences, the purported buyer to pay the difference between the market price and the agreed price if the market price is less than the agreed price, and the purported seller to pay such difference if the market price is higher than the agreed price.
Error from City Court of Floyd County; Harper Hamilton, Judge.
Action by Henry Hentz & Co., against J. H. Booz, Jr. Judgment for defendant, and plaintiffs bring error. Affirmed.
Lipscomb Willingham & Wright and Nathan Harris, for plaintiffs in error.
Dean & Dean, for defendant in error.
Henry Hentz & Co. sued J. H. Booz, Jr., in the city court of Floyd county, upon a note for $952.16, which he obligated himself to pay for value received. The defendant admitted the execution of the note and assumed the burden of proving that the note sued on was given as a part of a transaction had between plaintiffs and the defendant for the purpose of purchasing cotton for future delivery, and that it was never intended in good faith by the parties that any actual delivery of the cotton should be made, but that the agreement was for the purchase and delivery of said cotton on margins, usually called "dealing in futures." The defendant filed some additional pleas, but the case hinged on the one we have just stated. The jury found a verdict in favor of the defendant, and the plaintiffs have excepted to the judgment of the trial judge in refusing a new trial.
Inasmuch as it seems clear to us that the finding reached by the jury is amply supported by the evidence, we shall only consider the general grounds of the motion in the light of the special assignments of error, because, if the special assignments of error did not require the grant of a new trial, it cannot be said that the verdict of the jury was either contrary to the evidence, or contrary to law, or without evidence to support it, or contrary to the principles of justice and equity. After a full and exhaustive examination and review of the entire record, we are satisfied that, while some minor errors occurred in the course of the trial, they were not of sufficient gravity to have affected the result of the trial, nor likely to produce a different result if another trial should be granted.
2. The fourth, fifth, and sixth grounds of the motion for new trial assign error upon the admission of certain testimony delivered by the defendant in his own behalf, over the objection that each of the matters to which the plaintiffs sought to testify had been reduced to writing, and that these writings, or copies of the originals, were in existence, that the writings were higher and better evidence of their contents than the plaintiffs' statements in relation thereto, and that the effect of the plaintiffs' parol evidence was to contradict and vary these writings. The plaintiffs' counsel stated to the court that these writings were then in the court, and he tendered them to the defendant's counsel. The judge, over these objections permitted Mr. Booz to testify that there was no agreement as to the actual delivery of any cotton that he bought from the plaintiffs; that it was his intention to sell according to the market, as the market quotations would show; also that he wrote to the plaintiffs to ascertain how much money he would be required to keep there, and they stated that ...
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