Riordan v. Doty

• Citation: 34 S.E. 68,56 S.C. 111
• Parties: RIORDAN et al. v. DOTY.
• Decision Date: 30 September 1899
• Court: United States State Supreme Court of South Carolina

34 S.E. 68

56 S.C. 111

RIORDAN et al. v. DOTY.

Supreme Court of South Carolina

September 30, 1899

Appeal from common pleas circuit court of Fairfield county; Ernest Gary, Judge.

Action on a contract for the sale of cotton for future delivery brought by James Riordan and James K. Blackman, as co-partners under the firm name of Riordan & Co., against William R. Doty. At the close of the testimony, defendant moved for a nonsuit, which was granted. From this decision the plaintiffs appealed, alleging, among others, the following errors: That the court erred in holding that it rested with the court to determine whether the plaintiffs had made out their case; in undertaking to decide as to the weight and sufficiency of the testimony, which was solely a question for the jury; and in granting the nonsuit, when there was testimony sufficient to submit the case to the jury. Reversed.

The following are the grounds of the motion and the court's action thereon:

"(1) That there is no proof to go to the jury that the party making the sale of the alleged cotton was at the time of the making of such sale the owner or assignee of such cotton so alleged to have been sold.

(2) That there is no proof that the party making such alleged sale was at the time authorized by the owner or assignee, or his duly-authorized agent, to make and enter into such contract, bargain, or agreement.

(3) That there is no proof that, at the time of making such contract, bargain, or agreement, it was the bona fide intention of both parties thereto that the said cotton, so agreed to be sold and transferred, should be actually delivered and received in kind by said parties at the future time mentioned therein."

Grounds for granting nonsuit:

"Defendant's counsel move for a nonsuit under the provisions of sections 1859 and 1861 of the Revised Statutes.

The Court: In construing the motion, it seems to me it is necessary to take into consideration what was the object of section 1859 and the subsequent sections thereto. What was their purpose? Those statutes were obviously intended to prevent the practice of dealing in what is commonly known as 'futures' --cotton futures. That is the object of them; that is what those statutes were enacted for. Now, the complaint in this case alleges that the alleged sale was for the future delivery of cotton. That much we start out with the complaint alleges it. Now, I will read the section (1859), stripped of such verbiage as does not apply to the sale of cotton, and it would read as follows: 'Every contract, bargain or agreement, whether verbal or in writing for the sale or transfer at any future time of any cotton shall be void unless the party contracting, bargaining or agreeing to sell or transfer the same is at the time of making such contract, bargain or agreement the owner or assignee thereof, or is at the time authorized by the owner or assignee thereof or his duly authorized agent to make and enter into such contract, bargain or agreement, or unless it is the bonafide intention of both parties to the said contract, bargain or agreement, at the time of making the same that the said cotton shall be actually delivered in kind by the party contracting to sell and deliver the same, and shall be actually received in kind by the party contracting to receive the same at the period in the future mentioned and specified in the said contract, bargain or agreement.' Now, section 1860: 'In any and all actions brought in any court to enforce such contracts, bargains or agreements, the burden of proof shall be upon the plaintiff to establish that at the time of making such contract, bargain or agreement the party making the same was the owner or assignee of the cotton so agreed to be sold or transferred or was at the time authorized by the owner or assignee thereof or his duly authorized agent to make and enter into such contract, bargain or agreement, or at the time of making such contract, bargain or agreement it was the bona fide intention of both parties thereto that the said cotton so agreed to be sold and transferred should be actually delivered and received in kind by the parties at the future period mentioned therein.' In construing section 1861 of that act, which is similar, except the penalty is in a different form, the supreme court has said that the words 'any such contract' refer to section 1859; that is as to a void contract. Now, the burden is upon the plaintiff to prove what? To prove the requirements contained in section 1860, which are that he was at the time authorized by the owner or assignee thereof, or his duly-authorized agent, to make and enter into such contract; or that, at the time of making such contract, bargain, or agreement, it was the bona fide intention of both parties thereto that the said cotton so agreed to be sold and transferred should be actually delivered and received in kind, by the said parties at the future period mentioned therein. Now, here is the middleman bringing suit against his principal, and, in order for him to sustain his action, the burden is put upon him to show that this transaction doesn't come within what is known as the 'future' sale of cotton, but it must come under such requirements of the statute as would show that it was not a sale in futures. It has to come up to the mark which would distinguish it from that. The burden is upon him to show that. Now, the question is, upon whom does the obligation rest to say whether or not he has shown this by the burden of the proof? Upo

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