Lemonius & Co. v. D. Mayer & Son

CourtMississippi Supreme Court
Writing for the CourtCOOPER, J. Yours truly,
Citation71 Miss. 514,14 So. 33
Decision Date18 December 1893
PartiesLEMONIUS & Co. v. D. MAYER & SON ET AL

14 So. 33

71 Miss. 514

LEMONIUS & Co.
v.
D. MAYER & SON ET AL

Supreme Court of Mississippi

December 18, 1893


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

[71 Miss. 517] 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, [14 So. 34] 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

[71 Miss. 518] 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,...

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13 practice notes
  • National Surety Co. v. Board of Supr's Holmes County, 20678
    • United States
    • Mississippi Supreme Court
    • October 27, 1919
    ...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. (5) Dixon v. Doe, 1 S. &......
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • Mississippi Supreme Court
    • February 13, 1933
    ...Code of 1930, sections 958, 959. 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" and subject to att......
  • State Tax Commission v. Mississippi Power Co, 31657
    • United States
    • Mississippi Supreme Court
    • April 22, 1935
    ...of Levee Commissioners, 83 Miss. 102; McDonald v. State Tax Commission, 130 So. 473; Wilkerson v. Hudson, 71 Miss. 130; Lemonius v. Mayer, 71 Miss. 514; Goodman v. Loan Association, 71 Miss. 310; Miller v. I. C. R. R. Co., 111 So. 558; Town of Utica v. State, 148 So. 635. Assuredly, if doub......
  • Crane v. State, 28724
    • United States
    • Mississippi Supreme Court
    • June 2, 1930
    ...2235 of Hemingway's Code of Mississippi, 1927; J. & S. Goodman v. Swett, 66 So. 535, 108 Miss. 224; Lemonious et al. v. Mayer et al., 14 So. 33. Forrest B. Jackson, Assistant Attorney-General, for the state. The testimony was inadmissible for the reason that the stenographic notes of th......
  • Request a trial to view additional results
13 cases
  • National Surety Co. v. Board of Supr's Holmes County, 20678
    • United States
    • Mississippi Supreme Court
    • October 27, 1919
    ...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. (5) Dixon v. Doe, 1 S. &......
  • Alamaris v. Jno. F. Clark & Co, 30425
    • United States
    • Mississippi Supreme Court
    • February 13, 1933
    ...Code of 1930, sections 958, 959. 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" and subject to att......
  • State Tax Commission v. Mississippi Power Co, 31657
    • United States
    • Mississippi Supreme Court
    • April 22, 1935
    ...of Levee Commissioners, 83 Miss. 102; McDonald v. State Tax Commission, 130 So. 473; Wilkerson v. Hudson, 71 Miss. 130; Lemonius v. Mayer, 71 Miss. 514; Goodman v. Loan Association, 71 Miss. 310; Miller v. I. C. R. R. Co., 111 So. 558; Town of Utica v. State, 148 So. 635. Assuredly, if doub......
  • Crane v. State, 28724
    • United States
    • Mississippi Supreme Court
    • June 2, 1930
    ...2235 of Hemingway's Code of Mississippi, 1927; J. & S. Goodman v. Swett, 66 So. 535, 108 Miss. 224; Lemonious et al. v. Mayer et al., 14 So. 33. Forrest B. Jackson, Assistant Attorney-General, for the state. The testimony was inadmissible for the reason that the stenographic notes of th......
  • Request a trial to view additional results

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