James v. Haven & Clement

• Decision Date: 21 March 1911
• Docket Number: 2,058.
• Citation: 185 F. 692
• Parties: JAMES v. HAVEN & CLEMENT.
• Court: U.S. Court of Appeals — Fifth Circuit

185 F. 692

JAMES v. HAVEN & CLEMENT.

No. 2,058.

United States Court of Appeals, Fifth Circuit.

March 21, 1911

Victor Lamar Smith and Alex. W. Smith, for plaintiff in error.

H. N Randolph and Spencer R. Atkinson, for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and TOULMIN, District Judge.

PARDEE Circuit Judge.

In substance and effect this suit is one brought to recover specific sums of money paid out by the plaintiffs, Haven &amp Clement, as agents and brokers for the defendant, James, in purchasing and selling cotton futures; and the defense is that all the transactions for which plaintiffs paid out money were by intention and understanding of the parties, and in fact, gambling transactions; that is to say, only wagers depending upon the fluctuations of futures and the variations of the prices thereof upon the New York Cotton Exchange, with the understanding and intent of both parties that all such wagers should be lost or won according to such fluctuations in the price of futures in the New York Cotton Exchange, and incidental to such defense, that all transactions in the New York Cotton Exchange for the purchase and sale of cotton for future delivery were under the technical rules of the Exchange providing for 'ringing out' and substituting contracts by the brokers without the knowledge of principals and in the delays and technical notices and other formalities thrown in the way of any actual delivery, were, in fact, wagering transactions.

As to this incidental defense, we notice that, under the evidence admitted on the trial of the case (all of which is found in the transcript), the particular transactions wherein Haven & Clement claim that they purchased and sold cotton futures for the account of James for which they paid out moneys and now ask judgment were under the rules of the Exchange and otherwise so 'rung out,' substituted, arranged, and settled that the interests of no other or third parties are involved; and the validity of the transactions must stand or fall according to the actual agreements and intentions of the parties to this suit without reference to the character and manner of the business carried on in the New York Cotton Exchange further than it is useful in throwing light upon the actual understanding and agreements between Haven & Clement on the one side and James on the other.

Under this view of the issues of the case, we do not find it necessary to particularly consider the first six assignments of error, which complain of prejudicial rulings on the pleadings, as by the pleadings neither party seems to have been at all restricted or limited in the introduction of evidence.

Nor do we find it necessary to consider assignments of error seventh to sixteenth, inclusive, because they relate to the admission and rejection of evidence in relation to the rules of the New York Cotton Exchange and the transactions thereunder which throw no particular light on the main issue in the case, and reversible error cannot be predicated thereon.

The seventeenth assignment complains of the refusal to permit James to answer this question, 'What was your intention with reference to the delivery or the receipt of any actual cotton?' counsel at the time informing the court that:

'The witness would swear in answer to said question that he had no intention whatever of delivering or receiving any cotton under any contract between himself and plaintiffs, but that he was playing the cotton market on margins purely, and that he so advised the agents of the plaintiffs who solicited and procured the business for the plaintiffs.'

If there be any error in this ruling, it is cured by the fact that the evidence sought by the question was theretofore admitted to the full extent by the same witness and without objection.

The eighteenth assignment of error has little merit, and, besides the particular statement admitted, was otherwise substantially testified to by the same witness.

The bill of exceptions shows that prior to the charge of the court counsel for the defendant requested the court to give the jury the following instruction, to wit:

'I charge you that speculating or wagering contracts are void, and a broker or commission merchant cannot recover for advancement made on account of customer on account of such contracts. If there was no intention of buying or selling cotton, but the contract was only speculative in the present case, there can be no recovery,'

-- and that the court declined to give the said request to the jury. Also, that counsel for the defendant requested the court to charge the jury as follows: 'I charge you further, gentlemen, that no rights can arise in favor of either party to a contract of agency where the agency was created for an illegal purpose. If the plaintiffs and defendant contracted one with the other and the purpose of the contract was to play the market in cotton futures, the agency was illegal, and neither party would have the right to sue the other for losses or profits growing out of such agency,'

-- which also was refused.

In each the trial judge certifies that 'the same is not covered by any portion of the charge to the jury.'

These specially requested charges seem to be sound in law, and their application to the case in hand is beyond question. They certainly were not in unambiguous terms given to the jury, and it seems with the mass of evidence in the case, mainly devoted to the collateral, but not controlling, issue, involving the character of the rules and proceedings of the New York Cotton Exchange, these or similar distinct instructions bearing on the main issue in the case should have been given to the jury. The bill of exceptions also shows that prior to the charge the counsel for the defendant requested the court to give the jury the following instructions, to wit:

'I charge you, further, that, where a claim is based upon an

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