Luke v. Livingston

• Decision Date: 03 March 1911
• Docket Number: 2,636.
• Citation: 70 S.E. 596,9 Ga.App. 116
• Parties: LUKE v. LIVINGSTON.
• Court: Georgia Court of Appeals

70 S.E. 596

9 Ga.App. 116

LUKE v. LIVINGSTON.

No. 2,636.

Court of Appeals of Georgia

March 3, 1911

Syllabus by the Court.

In writings relating to the sale of property in process of growth or manufacture, to be delivered at a future date, the word "sell" will be construed as meaning "offers to sell," or "agrees to sell," and a writing in this form of contract which states that the one party sells to the other such a commodity for future delivery will be construed as an option or as an offer unless it affirmatively appears that it has been accepted. As to personal property, the acceptance may be shown by proof that the person to whom the offer is made has paid a portion of the purchase price.

Where a contract is subject to two constructions, one of which would make it lawful and the other unlawful, the court will, on demurrer, and until the circumstances under which the contract was made appear in proof, give the contract that construction which would make it lawful. Parol evidence is competent to show that a written contract apparently relating to an actual sale of cotton was in fact entered into merely for the purpose of allowing the parties to deal in cotton futures.

Error from City Court of Ocilla; H. E. Oxford, Judge.

Action by J. K. Livingston against J. C. Luke. Judgment for plaintiff, and defendant brings error. Affirmed.

Haygood & Cutts, for plaintiff in error.

O. H Elkins, J. B. Wall, H. J. Quincey, and Cobb & Erwin, for defendant in error.

RUSSELL J.

Livingston sued Luke upon the following contract:

"Georgia, Irwin County. This contract or agreement made and entered into this the 5th day of June, 1909, between J. K. Livingston, party of the first part, and J. C. Luke, of Irwin county, Ga., party of the second part, witnesseth: That the said party of the second part has and does by these presents sell to the said J. K. Livingston or his successors or assigns 100 bales of cotton, to be delivered f. o. b., Ocilla, Ga., on or before September and October the 15th day of November, 1909, at and for the price of September and October 10 5/16 cents per pound and November 10 1/4 cents per pound, basis good, middling, said cotton to be merchantable and in bales to average 500 pounds. The sum of one dollar in cash has been paid on this contract by the said J. K. Livingston to the party of the second part in part consideration, the receipt whereof is hereby acknowledged by the said party of the second part. The above number of bales represents the crop, or a part of the crop, of the party of the second part for the present year, and this contract is for actual cotton. Now should either party to this contract fail or refuse to carry out his or their part of same on the day specified, time being of the essence of the contract, it is understood and agreed that the party of the second part, upon making tender of said cotton, and the refusal of the said J. K. Livingston to accept same and settle at the price above contracted for, shall be entitled to liquidated damages in an amount equal to the difference between the price herein contracted for and the actual value of the same grade of cotton in Ocilla on the day of such tender of cotton, and, should the party of the second part fail and refuse to deliver said cotton on the day mentioned above for its delivery, it is understood and agreed that the said J. K. Livingston shall be entitled to liquidated damages in an amount equal to the difference between the actual value of the same grade of cotton in Ocilla on the date of delivery agreed upon in this contract and the price herein contracted for. It is expressly understood and agreed that each of the parties to this contract waive and renounce any and all rights they may have under and by virtue of the homestead or exemption laws, either state or federal, as against the fulfillment of this contract or the liquidated damages agreed on under same. Witness the hands and seals of each party in duplicate, the day and year first above written.

"[Signed] J. K. Livingston. [L. S.]

"H. H. James.

"[Signed] J. C. Luke. [L. S.]

"Extended to 25th day of November, 1909, by consent of each party."

The defendant demurred to the petition upon the ground that the contract was unilateral, and also on the ground that it was a wagering contract and not enforceable, for the reason that as the contract sets forth no obligation on the part of the plaintiff to buy the cotton, and is without mutuality as to any executory sale of cotton, and that as the only feature of the contract as to which there is any mutuality is that portion which provides for the payment of the difference between the contract price and the market price at the time fixed in the contract, and therefore it does not call for the actual delivery of any cotton, but calls merely for adjustment in money of the differences in the prices of cotton, it appears on its face to be a gaming or speculative contract, a "dealing in cotton futures." In response to another demurrer, addressed to a different point the plaintiff amended his declaration, and thereafter the judge...