Lemonius & Co. v. D. Mayer & Son

Decision Date18 December 1893
PartiesLEMONIUS & Co. v. D. MAYER & SON ET AL
CourtMississippi Supreme Court

October 1893

FROM the chancery court of Issaquena county, HON. W. R. TRIGG Chancellor.

The facts are stated in the opinion.

Decree affirmed.

Campbell & Starling, for appellant.

A contract valid in the jurisdiction where made and to be performed, will be enforced by the courts of another jurisdiction, through comity, although by its laws the contract be void. The exception is where the foreign contract was made with the design to defraud the laws of the forum, or is one which is contrary to sound morals or prejudicial to the interests of the country or state where sought to be enforced. It may he difficult to state exactly when a case comes within the exception. It is safe to say that a contract which is merely malum prohibitum in the jurisdiction where sought to be enforced, will be enforced here. To bring a contract within the exception, it must be inherently vicious. This rule has been applied to contracts growing out of the sale of liquors. Wharton on Conflict of Laws, § 486; 33 Mich. 275; 50 N.H. 253. And by our court to a contract of Louisiana made on Sunday. McKee v. Jones, 67 Miss 405. In Massachusetts it was applied to a contract regarding the purchase of slaves, valid where made, though void in that state. 19 Pick. 215; 6 Mass. 358. For the same principle applied to contracts in regard to lottery tickets, see 6 Hill (N. Y.), 526; 3 Met., 207; 10 Vt. 482; 11 N.Y. 437; 46 Mo App., 323. See, also, 8 Am. & Eng. Enc. L., 1020; 37 Fed. R., 852; 80 N.C. 294; 1 Ph. Eng. Ch., 147; 50 Mich. 388.

Miller, Smith & Hirsh, for appellees.

The contract sought to be enforced is plainly within the prohibition of the act of 1882, and a suit in this state to enforce it is forbidden by § 2 thereof. The language of this section is too plain to admit of controversy. The statute was passed to correct an existing and growing evil, and must be construed with reference to the exigency which called it forth. Shelton v. Baldwin, 26 Miss. 439; Ingraham v. Speed, 30 Ib., 410; Kimball v. Alcorn, 45 lb., 151.

That there was something intrinsically wrong in the evil sought to be remedied may readily be perceived, and the producers of cotton are opposed to it, and are now seeking to procure relief in congress. Looking at all this, it is manifest that the policy and purpose of the statute was to effectually. prohibit the enforcement in this state of all future contracts. It is true the first section in the statute made it a criminal offense for any person in the state to deal in contracts commonly called "futures," but as our courts could have no criminal jurisdiction over offenses committed elsewhere, it was not necessary to have inserted the limitation as to place. But the legislature had the power to prevent the enforcement of such contracts wherever made, and § 2 therefore omits the limitation. Surely the mere residence of parties cannot determine whether a gaming transaction under our laws shall be enforced. The only way in which the legislature could reach parties and contracts outside of the state was by depriving them of any right of recovery here

Apart from the plain provision of said statute, our courts are not bound by comity to enforce contracts, although valid where made, which are violative of state laws or which contravene its policy or offend the morals of its people. Hines v. Brazealle, 2 How. (Miss.), 837; Mahorner v. Hooe, 9 Smed. & M., 247; Wells v. Mitchell, 39 Miss. 800; Ivey v. Lalland, 42 Ib., 444.

It cannot be disputed that a wagering contract contravenes the policy of this state, violates its laws, offends the morals of its people and exhibits an example pernicious and disreputable. See 55 Pa. 294; 72 Ib., 155; 71 Ga,400; 150 Mass. 1 ; 56 Ark. 300; 65 Me. 570; 38 N.J.Eq. 219, s.c. 48 Am. R., 308.

Gambling contracts are not, like Sunday contracts, merely malum prohibitum. It is not because Christianity devotes the day to worship, that the law requires it to be observed as a day of rest. The law views Sunday as a mere civil institution, and does not condemn Sunday contracts as being essentially immoral or degrading. See Telegraph Co. v. McLaurin, 70 Miss. 26.

OPINION

COOPER, J.

In the summer of 1891, Oscar E. Mayer, of the firm of D. Mayer & Son, was in Liverpool, England, at which place the appellants were in business as cotton commission merchants, and, as such, bad before that time, and since have, transacted business with said firm of D. Mayer & Son. At some time prior to the third day of September, Oscar E. Mayer, acting for his firm, directed appellants to purchase for account of his firm a large quantity of cotton for future delivery, which contracts of purchase were to be made on the flags at Liverpool, and under and subject to the rules and usages of the exchange of that city. On the third day of September, the first purchase of two hundred bales was made, and this was followed by other purchases, until, on the seventeenth day of September, contracts for a quantity of cotton aggregating seventeen hundred bales had been made. On the eighteenth day of September, Mayer, being then about to return to America and to this state, of which he was a resident, and in which his firm was engaged in business, gave to appellants a letter confirming their action in the following terms:

"LIVERPOOL, September 18, 1891.

"Messrs. Lemonious & Co., Liverpool:

"DEAR SIR--On my leaving homewards, and as a record in business, I confirm the purchases you have made according to my instructions for account of my firm of D. Mayer & Son, Vicksburg, of

September 3, 200 bales cotton, December and January delivery, at

460/64

September 5, 300 bales cotton, December and January delivery, at

5 3/128

September 12, 200 bales cotton, January and February delivery, at

5 4/64

September 14, 200 bales cotton, January and February delivery, at

4 63/64

6 September 15, 200 bales cotton, January and February delivery, at

4 61/64

September 15, 200 bales cotton, February and March delivery, at

4 127/128

September 15, 200 bales cotton, March and April delivery, at

5 2/64

September 17, 200 bales cotton, April and May delivery, at

5

and it is understood that these contracts be liquidated before the time specified for delivery in the contracts.

"Your commission for attending to the business is threefourths per cent., including brokerage, and, whenever contracts are closed out, and you require a margin, my firm will readily provide same by remittance of bills of exchange. This same process will also have reference to the balance of your account lately rendered. . . .

Yours truly,

"OSCAR E. MAYER."

After the return of Mayer to this state the appellants made like purchases of five hundred other bales of cotton for future delivery, of which Mayer & Son were duly advised, and of which they approved.

Under the rules of the Liverpool exchange, contracts for the sale and purchase of cotton for future delivery could be made only by and between its members and in their names; and in all the contracts for the cotton above noted, Lemonius & Co. were named as the purchasers.

Under another rule of the exchange, weekly settlements were required of any differences of price of the cotton from that obtaining at the time of the contract, so that, under the contracts made by Lemonius & Co., in which they appeared as purchasers, if the price of cotton had advanced, they would have received in cash from the seller, each week, the advance in price, and if cotton declined, they were required to make like payments to the seller. In the terminology of the exchange, these payments are called "margins." Either the seller or buyer may elect to make or demand delivery of the cotton agreed to be sold and bought, but the general and, it seems, practically uniform custom, is that final settlements are made by payment and receipt of the differences in price at the time for delivery from that prevailing at the payment of the last weekly "margins." These settlements are made by "closing out the contracts." Contracts of this character are called, in England as in the United States, "futures," and by their number and volume have become matters of common knowledge.

Under the contracts made by Lemonius & Co. for Mayer & Son, there were losses to the amount of $ 20,222, which were paid by Lemonius & Co., and charged by them on their account against Mayer & Son, on which account the latter firm were also largely indebted on other dealings, and as to which other indebtedness there is no controversy.

Lemonius & Co. exhibited their bill in the chancery court of Issaquena county to subject to the payment of their demand certain real and personal property in that county, which they averred had been fraudulently disposed of by Mayer & Son. On final hearing, the complainants were granted relief except as to so much of their demand as arose out of the payment by them of the losses on the contracts for "futures" hereinbefore set forth, which losses the court below held could not be recovered, because they arose in a gaming venture or on contracts prohibited by the laws of this state. From this decree Lemonius & Co. appeal, and the single question for decision is whether complainants are entitled to recover for the payments made by them on losses under the future contracts.

Counsel for the respective parties have presented elaborate and instructive arguments touching the validity of these contracts under the laws of England, where they were made and to be performed; and counsel for appellants also argue that even if it be found that the contracts themselves were invalid under the English law, as being gaming agreements, yet, the contracts...

To continue reading

Request your trial
37 cases
  • Ascher v. Edward Moyse & Co.
    • United States
    • United States State Supreme Court of Mississippi
    • January 29, 1912
    ......Foote, 113 Ill. 228; Exchange v. Mellon, 27. Ill.App. 556; Lester v. Buel, 49 Ohio State 240;. McGraw v. Exchange, 85 Tenn. 572; Lemonius v. Mayer, 71 Miss. 514; Gray v. Robinson, 95 Miss. 1; Virden v. Murphy, 78 Miss. 515; Campbell v. Bank, 74 Miss. 526; Violet v. Margold, ......
  • City of Greenwood v. Humphrey & Co., Inc
    • United States
    • United States State Supreme Court of Mississippi
    • May 23, 1938
    ...102 Miss. 640, 59 So. 859; U. S. v. Goldenberg, 168 U.S. 95, 42 L.Ed. 394; 18 S.Ct. 3; Green v. Weller, 32 Miss. 650; Lemonius v. Mayer, 71 Miss. 514, 14 So. 33; L. N. R. Co. v. MacDonald, 79 Miss. 641, 31 So. 317; 8 Am. & Eng. Ency. L. (2d) pages 22-23; Henry v. West, 49 F.2d 813. There wa......
  • Alamaris v. Jno. F. Clark & Co
    • United States
    • United States State Supreme Court of Mississippi
    • February 13, 1933
    ...... . . Where. an act is made illegal and criminal, no right of action can. arise therefrom. . . Lemonious. v. Mayer, 14 So. 33; White v. Eason, 15 So. 66. . . One. engaged in transactions similar to those in the present case. is dealing in "futures" ......
  • National Surety Co. v. Board of Supr's Holmes County
    • United States
    • United States State Supreme Court of Mississippi
    • October 27, 1919
    ......Louisville R. R. Co., 53 So. 454;. Warren v. Boothe, 81 Miss. 267, 32 So. 1000;. Forniquet v. The Felliciana R. R. Co., 6 M. 116;. Lemonius v. Mayer, 71 Miss. 514; Bobo v. Levee. Comissioners, 92 Miss. 792, 46 So. 819; Adams County. v. Catholic Diocese of Natchez, 110 Miss. 890. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT