Levy, Aronson & White v. Jones

• Decision Date: 13 April 1922
• Docket Number: 6 Div. 506.
• Citation: 93 So. 733,208 Ala. 104
• Parties: LEVY, ARONSON & WHITE v. JONES.
• Court: Alabama Supreme Court

93 So. 733

208 Ala. 104

LEVY, ARONSON & WHITE v. JONES.

6 Div. 506.

Supreme Court of Alabama

April 13, 1922

Rehearing Denied June 30, 1922.

Appeal from Circuit Court, Blount County; Woodson J. Martin, Judge.

Action by Levy, Aronson & White against T. H. Jones, on account account stated, and for money paid for defendant's use and at his request, and plea of set-off by defendant. From a judgment over for defendant, plaintiffs appeal. Reversed and remanded.

Percy Benners & Burr, of Birmingham, for appellant.

Russell & Johnson, of Oneonta, for appellee.

THOMAS J.

The motion to dismiss the appeal is overruled. It was not in accordance with section 5 of the act of February 15, 1919 (Acts 1919, p. 85). Jacobs v. Goodwater Graphite Co., 205 Ala. 112, 87 So. 363.

Counts 1 and 2 of the complaint were the common counts for open and stated accounts. Counts 3 and 4 claimed a certain sum of the defendant for moneys expended by plaintiffs for defendant's use and at his request in the purchase and sale of cotton for future delivery upon the New Orleans Cotton Exchange. Defendant pleaded the general issue, and special pleas that the contracts sued on were future contracts condemned in section 3349 et seq. of the Code. The case was tried without a jury; the judgment rendered being that-

"Defendant T. H. Jones recover of the said plaintiffs on his plea of set-off the sum of two thousand dollars ($2,000.00) damages, as now found and assessed by the court." Acts 1919, pp. 555, 825.

Defendant's plea of set-off (J. C. Lysle Mill Co. v. North Ala. Groc. Co., 201 Ala. 222, 77 So. 748), on which judgment was rendered against plaintiffs, was that the foundation of the suit is a gambling consideration, and arose in the following manner: During the month of November, 1919, defendant purchased 100 bales of cotton for future delivery by "merely staking margins"; that at the time of said purchase defendant paid the plaintiffs "$1,000 as margins on said contract"; and in said contract it was agreed by the parties that the actual cotton would not be delivered, but that when the time arrived for delivery "differences would be settled for by paying or receiving differences between the price when sold and the price at the time of delivery"; that within 60 days from the making of the contract and the payment of said sum "the price of cotton declined, and plaintiffs made a demand on defendant for another payment of $1,000 as margins on said illegal and gambling contract," which defendant paid "in pursuance of said illegal and gambling contract," being in settlement of the differences to that date "in the price of cotton when sold and the time of delivery in accordance with the terms of the original contract." It is further averred that defendant has never received any cotton or other thing of value for the $2,000 which he so paid "plaintiffs under said illegal and gambling contract, and he hereby offers to set off said $2,000 against the demands of the plaintiffs, and asks judgment for the excess."

The act of March 7, 1907 (Acts 1907, p. 448), as rewritten by the Code Committee and carried as sections 3349-3353, article 5, chapter 67, enumerates future contracts declared void, excepts those engaged in the business of manufacturing or wholesale merchandising in the purchase or sale of the necessary commodities required in the ordinary course of their business, and declares that (Code, § 3351):

"Proof that anything of value, agreed to be sold and delivered, was not actually delivered at the time of making the agreement to sell and deliver, and that one of the parties to such agreement deposited or secured, or agreed to deposit or secure, what are commonly called 'margins,' shall constitute prima facie evidence of the contract declared void by the preceding sections."

And that (section 3353):

"Any money or thing paid or delivered to any person, whether as principal, agent, or broker, in furtherance or settlement of any contract made in violation of this article, may be recovered in any action brought by the person paying the same, his wife or child."

The subject was of legislative consideration (Acts 1915, p. 913) on the passage of the act entitled:

"An act to prescribe, fix and regulate contracts of sale for future delivery of stocks, bonds and other commodities, and to make the contract of sale of cotton for future delivery conform with the acts of Congress approved August 18, 1914, and known as the 'United States Cotton Future Act' (including such amendments as may hereafter be made to said act of Congress), and for the punishment of a violation thereof."

Section 4 thereof provides that proof of the fact that any contract for the future delivery of cotton was not made subject to the act of Congress, approved August 18, 1914, and known as the United States Cotton Futures Act (6 U.S. Comp. St. 1916, c. 8b, § 6309a, p. 7291), shall be prima facie evidence of an illegal contract declared void by section 3 of the act; that the failure to give information required by section 5 shall be of like effect; and the repealing clause of the statute is:

"That all laws and parts of laws in conflict with the provisions of the United States law referred to in section 4 of this act are hereby repealed." Section 6.

The question is whether or not, by the enactment of September 25, 1915, there was the legislative intent to repeal all existing laws of the state relating to the subject dealt with; that is to say, whether the effect of the latter statute upon article 5, chapter 67, of the Code, p. 355, was merely to modify the same or to repeal by implication. Appellant insists that the article was repealed, or that the effect of the latter statute was to repeal sections 3351-3353 of the Code, as inconsistent with the act of 1915 and the United States Cotton Futures Act. U.S. Stat. at L., vol. 38, p. 693, c. 255; U.S. Comp. St. 1916, vol. 6, p. 7291, c. 8b, § 6309a et seq. If appellant be correct, the trial court could not have applied the prima facie rule of proof declared by Code, § 3351, and without which judgment should not have been rendered against the plaintiffs on the plea of set-off.

A consideration of the record discloses that the lower court decided that the real parties in interest were the individuals composing the firm doing business as Levy, Aronson, and White, as plaintiffs (for whom W. E. Campbell was acting as correspondent) and T. H. Jones, the defendant; that the account existed between Levy, Aronson & White, brokers of the city of New Orleans, and the defendant, of the county of Blount in this state, in which county the suit was brought. It is equally clear that the court determined that the suit grew out of a prohibitive contract under the laws of the state, and that the judgment rendered was based upon the provisions of Code, § 3353, which authorizes a recovery of money paid in settlement or in pursuance of contracts made in violation of law and of this article. The fact that the contract was made under and subject to the laws of this state was supported by the evidence.

It will not be doubted that the state has the inherent authority, under its police powers, to pass laws necessary to protect the property and morals, as well as the lives, of the people, and to promote the public convenience and general prosperity, and that such statutes have not been held invalid because incidentally affecting commerce between the states except only to the extent that Congress has interposed restraint; that though Congress may have enacted a law relating to a subject on which a state may legislate, yet if the federal law be a limited enactment, to such extent is the subject left to state regulation; and where enforcement of the state statute can be had without embarrassment of the enforcement of the federal law, the state enactment will be permitted to operate in aid of the federal. In determining whether a federal statute has superseded a state enactment, its entire scope and purpose must be considered, and that which needs to be implied within its statutory scope and intent is of no less force than that...