Ponder v. Jerome Hill Cotton Co.

• Citation: 100 F. 373
• Decision Date: 13 February 1900
• Docket Number: 1,172
• Parties: PONDER et al. v. JEROME HILL COTTON CO.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

100 F. 373

PONDER et al. v. JEROME HILL COTTON CO.

No. 1,172

United States Court of Appeals, Eighth Circuit.

February 13, 1900

Charles Coffin, J. M. Moore, H. L. Ponder, and W. B. Smith, for plaintiffs in error.

U. M Rose, W. E. Hemingway, and G. B. Rose, for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

Complaint is made of but one error in this case, and that is that at the close of the trial before a jury the court instructed them to return a verdict in favor of the defendant in error. At the close of the trial of a case before a jury in the national courts, there is always a preliminary question for the judge before the case can be submitted to the jury; and that question is not whether there is no evidence, but whether there is any substantial evidence, upon which the jury can properly render a verdict in favor of the party who produces it. Railway Co. v. Belliwith, 28 C.C.A 358, 83, Fed. 437, 440; Commissioners v. Clark, 94 U.S. 278, 284, 24 L.Ed. 59; North Pennsylvania R. Co. v Commercial Nat. Bank of Chicago, 123 U.S. 727, 733, 8 Sup.Ct. 266, 31 L.Ed. 287; Railroad Co. v. Converse, 139, U.S. 469, 11 Sup.Ct. 569, 35 L.Ed. 213; Laclede Fire-Brick Mfg. Co. v. Hartford Steam-Boiler Inspection &amp Insurance Co., 19, U.S.App. 510, 519, 9 C.C.A. 1, 4, 60 F. 351, 354; Gowen v. Harley, 12 U.S.App. 574, 585, 6 C.C.A. 190, 197, 56 F. 973, 980; Motey v. Granite Co., 36 U.S.App. 682, 686, 20 C.C.A. 366, 368, 74 F. 155, 157. The question presented, therefore, is whether or not there was any substantial evidence presented at the trial in support of the defense interposed by the plaintiffs in error. The determination of this question necessitates a brief consideration of the issue and of the evidence.

The action was based on a promissory note made by the plaintiffs in error, Willis M. Ponder and Andrew M. Ponder, for the sum of $3,705.59, on March 4, 1892, payable to the order of Hill Fontaine & Co., and by them indorsed and sold to the defendant in error, the Jerome Hill Cotton Company, a corporation. The defense was that the note was given for moneys advanced by Hill, Fontaine & Co., for the co-partnership, U. M. Ponder & Co., which was composed of the plaintiffs in error and one Charles J. Free, in payment of losses on gambling contracts in cotton futures made by W. M. Ponder & Co. through Hill, Fontaine & Co., as their agents. The evidence disclosed these facts: Willis M. Ponder and A. M. Ponder were not gamblers. They were merchants of Walnut Ridge, in the state of Arkansas, and Hill, Fontaine & Co. were cotton factors and commission merchants at St. Louis, in the state of Missouri. In October, 1891, Hill, Fontaine & Co. had about 500 bales of cotton, which Ponder & Co. had bought in Arkansas, and shipped to them at St. Louis, to hold, and ultimately to sell, when the owners so directed. Ponder & Co. were of the opinion that the price of cotton would rise, and they intended to hold this cotton, and sell it at the expected advanced price. Without their direction, and against their wishes, Hill, Fontaine & Co. sold 200 bales of this cotton, and Ponder &Co. complained of this act. Hill, Fontaine & Co. answered that they regretted their action, but that there could be no loss, because they could buy for Ponder & Co. contracts for the delivery of this cotton in the following March at a low price as low as that at which they had sold the 200 bales. This complaint and answer were made in a conversation between W. M. Ponder and Jerome Hill, and Ponder testified: That he had never bought any cotton futures before. That Hill told him he would have to advance a margin of $1 a bale; that, if the margin went down, he would have to put up more, to get the advance in the market. That they did not buy any spot cotton in that way. That, if Hill had told him that he would have to accept a delivery of the cotton at the time of the purchase he would not have made the deal. That he told him there would be no delivery of the cotton when he gave him the order to buy it. And that some time after he had ordered the purchase of contracts for the delivery of 200 bales, and after the price had declined, Hill said, 'You had better take two hundred more bales, to cover losses on the two hundred futures you have, to keep up with it. ' The result was that Ponder & Co. directed Hill, Fontaine & Co. to buy for them contracts for the delivery of 400 bales of cotton in the following March, and Hill, Fontaine & Co. executed these directions through members of the New York Cotton Exchange, who bought the contracts for Ponder & Co. in accordance with its rules. The contracts thus purchased were valid and enforceable agreements for the delivery of the cotton in March in the city of New York. The vendors bound by the contracts intended to deliver the cotton according to the terms of the contracts, tendered it at the proper time, and actually delivered 200 bales of it. Before the time for the delivery of the cotton arrived, however, the price of it gradually declined; and on February 3, 1892, Hill, Fontaine & Co. requested Ponder & Co. to make their margin good, and they failed to do so. Later, in February, 1892, Ponder & Co.'s contracts were sold on the New York Cotton Exchange at a loss of $3,705.59, which Hill Fontaine & Co. paid for them, and to reimburse them for this expenditure the plaintiffs in error made the note in suit. Hill, Fontaine & Co. never bought, sold, or dealt in cotton futures on their own account, and in this transaction they were the agents of Ponder & Co. to communicate their orders to the members of the cotton exchange who made the purchases for them, and Hill, Fontaine & Co. neither charged nor received any commission or compensation for their services. There was testimony that those who reside in the state of Arkansas and in that vicinity, who purchase contracts for the future delivery of cotton, rarely, if ever, receive the delivery of the cotton under their contracts. It was upon this state of facts that the court below held that the plaintiffs in error had produced no substantial evidence in...