Miller & Co v. Shropshire

• Decision Date: 15 February 1906
• Citation: 53 S.E. 335,124 Ga. 829
• Court: Georgia Supreme Court
• Parties: MILLER & CO. v. SHROPSHIRE.

53 S.E. 335

(124 Ga. 829)

MILLER & CO.

v.SHROPSHIRE.

Supreme Court of Georgia.

Feb. 15, 1906.

Gaming—Dealing in Futures—Monet Lost —Recovery.

Irrespective of whether a purely speculative transaction in cotton is a "gaming" contract, within the meaning of Civ. Code 1895, § 3671, inasmuch as the General Assembly permits one paying a license tax to engage in the business of buying and selling "futures, " he cannot be subjected to the penalty imposed by that section, which declares that "money or property delivered up upon" a gaming consideration "may be recovered back from the winner by the loser, if he shall sue for the same in six months after the loss, " or, if he shall fail to bring suit within that period, "by any person, at any time within four years [thereafter], for the joint use of himself and the educational fund of the county."

[Ed. Note.—For cases in point, see vol. 24, Cent. Dig. Gaming, § 72.]

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by W. F. Shropshire against Miller & Co. Judgment for plaintiff, and defendant brings error. Reversed.

W. F. Shropshire brought suit by attachment against Miller & Co., a nonresident partnership, alleging that the defendant operated in the city of Atlanta what is commonly known as a "bucket shop"; that the business of the defendant was to buy and sell cotton "futures" upon margins, it not being contemplated by either the buyer or the seller that there should be any actual delivery of the cotton, but it being understood that they should settle according to the market prices on certain specified dates and that the margins were placed to cover the fluctuations of the market; and that In his dealings with the defendant the plaintiff had lost $490 to the defendant by speculating in this manner upon the rise and fall in the price of cotton. The defendant demurred to the petition on the ground that it set forth no cause of action, for the reasons (1) that the plaintiff sought to recover money lost upon an illegal contract, in which the plaintiff appeared to be in pari delicto, and (2) that the plaintiff sought to recover money lost upon an alleged "gaming" contract, when it appeared from the plaintiff's petition that the contract was not a "gaming" contract in the sense of the statute authorizing the recovery from the winner of money hazarded under such a contract. There were also certain special demurrers filed by the defendant, but the petition was amended so as to meet the objections to it thus urged. The court overruled the demurrer, and the defendant excepts.

Hoke Smith and Henry Hull, for plaintiff in error.

J. P. Golightly, for "defendant In error.

EVANS, J. (after stating the facts). In the view we take of this case, it is unnecessary to express any opinion upon the question whether, as a purely abstract proposition, a speculation in cotton "futures" is to be regarded as a "gaming" contract; nor are we called on to say whether such a transaction is, or is not, within the purview of our Civ. Code 1895, § 3671. The real and controlling question presented for decision is whether or not the penalty provided for by that section can be enforced against one who conducts what is commonly known as a "bucket shop." For a number of years past the General Assembly has imposed upon every individual or firm engaged in the business of buying or...