Knox v. Clark

• Decision Date: 14 December 1936
• Docket Number: 32340
• Court: Mississippi Supreme Court
• Parties: KNOX v. CLARK et al

171 So. 340

177 Miss. 195

KNOX v. CLARK et al

No. 32340

Supreme Court of Mississippi

December 14, 1936

Division A

Suggestion Of Error Overruled January 25, 1937.

APPEAL from circuit court of Hinds county HON. J. P. ALEXANDER Judge.

Suit by John F. Clark, Jr., and others, against Rush H. Knox. From an adverse judgment, the defendant appeals. Reversed and remanded.

Reversed and remanded.

Creekmore, Creekmore & Capers, of Jackson, for appellant.

Plaintiff to make out case had to rely on illegal contract and claim cannot be enforced.

The defense pleaded by the defendant in this case was a violation of sections 1828 and 1830 of the Code of 1930, which is the statute providing that certain contracts of sale for future delivery of cotton and other commodities shall be null and void and unenforceable in any court of this state.

In the case of Alamaris v. John F. Clark & Company, 145 So. 893, 166 Miss. 122, the court held that contracts for future delivery of commodities are valid only where the parties intend actual delivery of the goods and payment of the price therefor, and that where there is evidence that will support an inference that the parties did not intend actual delivery under the contract for future delivery the question was for the jury. In the case at bar, the jury were not permitted to pass upon circuit judge instructed the jury this question but the to find for the plaintiffs, presumably upon the theory that the claim sued for was not a part of the illegal contract and could, therefore, be enforced. We submit that the learned circuit judge misconstrued the Mississippi decisions and completely overlooked the fact that it was necessary to prove the illegal contract and transaction in order to offer any testimony to substantiate the claim of three hundred fifty dollars claimed to have been paid by error.

Adler v. C. J. Searles & Co., 86 Miss. 406, 38 So. 209. It is apparent to anyone that the plaintiffs, in order to prove their case, had to go into the whole contract, the rules and regulations of the cotton exchange, etc., in order to show the alleged mistake in the payment. The only way that a prima facie case could be made out on behalf of the plaintiffs would be by proving that Knox was paid three hundred fifty dollars, that the payment was made by mistake and Knox refused to refund the money. Now this could not be done except by introducing the ledger records of the plaintiff and the record when introduced showed a balance of about two thousand nine hundred dollars in Knox's favor. Then it became necessary for the whole contract and the method of dealing between the parties to be testified about and when that was done the illegal contract became the basis of the suit to recover the money.

13 C. J. 502, sec. 445.

Apparently there is no conflict in the authorities upon the proposition that if the complaining party must prove the illegal transaction no recovery can be had.

Mitchell v. Campbell, 111 Miss. 806, 72 So. 231; Lowenburg v. Klein, 125 Miss. 284, 87 So. 653; Woodson v. Hopkins, 85 Miss. 171; Dixie Rubber Co. v. Catoe, 145 Miss. 342, 110 So. 670; Green v. Brown, 159 Miss. 893, 133 So. 153; Grapico Bottling Co. v. Ennis, 140 Miss. 502, 106 So. 97.

Loving & Loving, of Columbus, for appellees.

The plaintiffs, in the court below, appellees here, made out a prima facie case by showing the payment or remittance of three hundred fifty dollars on July 8, 1930, to the appellant, and by charging to the account of Ross M. Knox of Mobile, and that no knowledge of this error was known until October 14, 1930. It is true that the appellees first brought out in the trial of this case the fact that the appellant was dealing with the appellees in cotton. But this was not brought out for the purpose of making out a case against the appellant, but to meet the allegations in the special plea, in which the appellant plead the gambling act. It possibly would have been better form to have shown the error, the payment of the money as it was paid, and rested the case, than to have brought out this dealing between the parties in rebuttal, but such was not the case, and the facts in reference to the cotton dealings were brought forward at the time that it was, for the purpose of meeting the matters set forth in the special plea. This special plea is an affirmative plea and a plea in which the burden of proof rests on the appellant, for the reason that the determination of the defense is not necessary for the establishment of a prima facie case by the appellees, the appellees could, and did make out a prima facie case, without the determination of the facts set forth in this plea.

Archer v. Helm, 70 Miss. 874, 12 So. 703; Bessler Movable Stairway Co. v. Bank of Leakesville, 140 Miss. 536, 106 So. 445; Georgetown Mercantile Co v. Steen, 155 Miss. 719, 125 So. 120.

In reviewing the evidence on this special plea, it clearly appears that the appellant did not meet the burden of proof that rested upon him, in fact, that he wholly failed to do so.

The evidence of the plaintiff in the court below, appellees here, shows that there was some cotton dealings between the parties hereto, and that it was conducted in a legal way and met the requirements of the statute that delivery was contemplated, and that the appellant signed an instrument to this effect.

It is true in appellant's testimony, he states he never contemplated any delivery of cotton, under the dealings he had with the appellees, yet he admits signing the contract providing for actual delivery. Nowhere in the evidence does he disclose the fact that he informed the appellees that he did not contemplate delivery and repudiate the instrument he had signed where actual delivery is provided for The fact, his furnishing the appellees, under his own signature, the statement that actual delivery was contemplated must. prevail and control in this suit over his oral testimony as to what his intention in the matter was, without his informing the appellees of what his actual intention in the matter was.

We submit that the defense put up by the appellant was not material to overcome or to be disproven to prevent the appellees from making out a prima facie case and with all the evidence on this special plea the appellees made out a prima facie case and the appellees are entitled to recover under the common counts; that the evidence clearly shows that the appellant received three hundred fifty dollars from the appellees to which he is not entitled, and in equity and good conscience, it is not his money, and under the common counts to the declaration, the appellees are entitled to recover.

Pascagoula Hardwood Co. v. Chisholm, 164 Miss. 242, 144 So. 710.

The appellant cites many cases in reference to illegal contracts, especially recovery on illegal contracts, but recovery is not sought in this action on an illegal contract, but on money paid through mistake, and we must insist that the evidence clearly shows that the money was paid through error.

Adler v. C. J. Searles & Co., 86 Miss. 406, 38, So. 209.

It has been held by this Honorable Court that even where an illegal business has been carried on between the parties and they make a settlement of this illegal can business and a payment is made in error, be recovered, but in this instance there is no effort whatever to enforce any contract, but merely to recover money that has been paid through error, and that the error has been fully established without any resort whatever to the contract, and the only reference to the contract on the part of the appellees is a refutation of the matters and things set forth in the special plea.

Moritz v. Lumbley, 141 Miss. 453, 106 So. 642.

OPINION

McGowen, J.

John F. Clark, Jr., and others, a partnership composing the firm of John F. Clark & Co., brought an action at law against Rush H. Knox, the appellant, to recover three hundred and fifty dollars, an alleged overpayment by cheek drawn by Clark & Co. in favor of Knox.

By an...