Holbrook v. Shepard, 3791.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation279 F. 193
Docket Number3791.
PartiesHOLBROOK v. SHEPARD et al.
Decision Date01 March 1922

279 F. 193

HOLBROOK
v.
SHEPARD et al.

No. 3791.

United States Court of Appeals, Fifth Circuit.

March 1, 1922


[279 F. 194]

Samuel Nesbit Evins, of Atlanta, Ga. (Jones, Evins & Moore, of Atlanta, Ga., on the brief), for plaintiff in error.

S. Holderness, of Carrollton, Ga., and Edgar Watkins, of Atlanta, Ga. (Watkins, Russell & Asbill, of Atlanta, Ga., on the brief), for defendants in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN, Circuit Judge.

Defendants in error, as plaintiffs, recovered judgment against plaintiff in error, as defendant, for commissions and for losses on divers contracts entered into on the New Orleans Cotton Exchange, and subject to its rules and regulations, for the purchase and sale of cotton for future delivery. The petition alleged that defendant requested plaintiffs to advance, and promised to pay them, the sums of money thereafter lost on these contracts.

Demurrers to the petition, based upon its failure to allege that the contracts were in writing, and therefore within the statute of frauds, and attacking the contracts as mere wagers and unenforceable, under section 4258 of the Georgia Code, were overruled; but, inasmuch as the petition failed to allege from and to whom purchases and sales were made, the court limited plaintiffs to proof of defendant's express promise to pay. Defendant did not plead the statute of frauds, but compliance with its provisions was shown by the evidence. Defendant's answer denied the promise to pay, and affirmatively alleged that it was not the intention of either plaintiffs or defendant that actual delivery of cotton should be made, thereby raising the question, unsuccessfully sought to be raised by demurrer, of the validity of contracts for future delivery.

Plaintiffs were brokers at New Orleans, and members of the New Orleans Cotton Exchange. Defendant lived at Atlanta, and there gave orders to a local agent of plaintiffs for the purchase and subsequent sale of 2,000 bales of cotton for future delivery. The losses sued for were sustained by plaintiffs in executing these orders. Upon the issue of defendant's promise to pay, the evidence was in direct conflict. The Atlanta agent of plaintiffs testified that defendant requested him to have plaintiffs make the advances, and two of the plaintiffs testified that the defendant promised them to pay the amounts lost after, but on the same day, they were advanced. On the other hand, defendant testified the advances were made without his authority, and that he did not promise to pay the losses incurred.

Upon the issue of the intention of the parties to make or accept actual delivery of cotton, the defendant testified that he had no such intention, but was merely speculating on the rise and fall of the market price. He did not communicate that intention to plaintiffs, and, if he had done so, their Atlanta agent testified that he would not have accepted the orders. The plaintiffs themselves testified that actual delivery of cotton would have been made to defendant, or accepted from him, as the case might be, if the contracts had been kept in force, and if such delivery had been tendered or demanded. The...

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9 practice notes
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...one of fact for the determination of the jury. James v. Clement, 223 F. 385; Alex Hyman & Co. v. Hay, 277 F. 898; Hobrook v. Shepard, 279 F. 193; Sharp v. Stalker, 63 N.J.Eq. 596, 52 A. 1120; Benson Stabeck Co. v. Reservation Farmers' Grain Co., 62 Mont. 254, 205 P. 651; Clark v. McNeil......
  • Catlett v. Chestnut
    • United States
    • United States State Supreme Court of Florida
    • January 2, 1933
    ...A.) 30 F. (2d) 901; Fourth National Bank of Montgomery v. Portsmouth Cotton Oil Corp. (C. C. A.) 284 F. 718; Holbrook v. Shepard (C. C. A.) 279 F. 193; La Crosse Plow Co. v. Pagenstecher (C. C. A.) 253 F. 46; Williams v. Vreeland (C. C. A.) 244 F. 346; Id., 250 U.S. 295, 39 S.Ct. 438, 63 L.......
  • Tyson-Long Co. v. Wolfe, No. 5452.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 5, 1936
    ...& Co. v. Col. Ry. (C.C.A.) 17 F.(2d) 46, 51 A.L.R. 983; White v. Bradley Timber Co. (D.C.) 119 F. 989; Holbrook v. Shepard (C.C.A.) 279 F. 193; Mayes v. U. S. Trust Co. (C.C.A.) 280 F. 25; West v. Roberts (C.C.A.) 135 F. 350; Orr v. Waldorf-Astoria Hotel Co. (C.C.A.) 291 F. 343; Empire ......
  • Mohawk Oil Corp. v. Simpson, 3786.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 28, 1922
    ...Loan Co. (C.C.A.) 268 F. 523; South Atlantic Packing & Provision Co. v. York Mfg. Co. (C.C.A.) 276 F. 509; Holbrook v. Shepard (C.C.A.) 279 F. 193. 2. We do not think that any questions as to the date, authorization, or validity of the notes given by the Monitor Oil Company to the plain......
  • Request a trial to view additional results
9 cases
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...one of fact for the determination of the jury. James v. Clement, 223 F. 385; Alex Hyman & Co. v. Hay, 277 F. 898; Hobrook v. Shepard, 279 F. 193; Sharp v. Stalker, 63 N.J.Eq. 596, 52 A. 1120; Benson Stabeck Co. v. Reservation Farmers' Grain Co., 62 Mont. 254, 205 P. 651; Clark v. McNeil......
  • Catlett v. Chestnut
    • United States
    • United States State Supreme Court of Florida
    • January 2, 1933
    ...A.) 30 F. (2d) 901; Fourth National Bank of Montgomery v. Portsmouth Cotton Oil Corp. (C. C. A.) 284 F. 718; Holbrook v. Shepard (C. C. A.) 279 F. 193; La Crosse Plow Co. v. Pagenstecher (C. C. A.) 253 F. 46; Williams v. Vreeland (C. C. A.) 244 F. 346; Id., 250 U.S. 295, 39 S.Ct. 438, 63 L.......
  • Tyson-Long Co. v. Wolfe, No. 5452.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • February 5, 1936
    ...& Co. v. Col. Ry. (C.C.A.) 17 F.(2d) 46, 51 A.L.R. 983; White v. Bradley Timber Co. (D.C.) 119 F. 989; Holbrook v. Shepard (C.C.A.) 279 F. 193; Mayes v. U. S. Trust Co. (C.C.A.) 280 F. 25; West v. Roberts (C.C.A.) 135 F. 350; Orr v. Waldorf-Astoria Hotel Co. (C.C.A.) 291 F. 343; Empire ......
  • Mohawk Oil Corp. v. Simpson, 3786.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 28, 1922
    ...Loan Co. (C.C.A.) 268 F. 523; South Atlantic Packing & Provision Co. v. York Mfg. Co. (C.C.A.) 276 F. 509; Holbrook v. Shepard (C.C.A.) 279 F. 193. 2. We do not think that any questions as to the date, authorization, or validity of the notes given by the Monitor Oil Company to the plain......
  • Request a trial to view additional results

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