Appeal
from common pleas circuit court of Fairfield county; R. C
Watts, Judge.
Action
by Riordan & Co. against William R. Doty to recover a balance
due for money advanced. From judgment for defendant
plaintiffs appeal. Affirmed.
Following
are the grounds of appeal, viz.: "(1) For that his honor
erred in refusing to allow the plaintiffs to introduce in
evidence the rules and by-laws of the New York Cotton
Exchange, and in granting a nonsuit in the absence of the
same from the testimony in the case. (2) For that his honor
erred in usurping the functions of the jury, when he held as
follows: 'The testimony in this case, taken as a whole
satisfies me that these parties here are claiming for losses
on cotton futures; that the contract was in violation of the
act of 1883 at the time this first contract was made, and all
the way through; that there was no bona fide intention on the
part of Mr. Doty, the defendant here, to deliver the cotton
itself, or that he was the owner of any cotton, or that he
was the assignee of any cotton.' (3) For that his honor
erred in further invading the province and usurping the
functions of the jury, when he held as follows: 'Now, if
this action was brought on the October cotton alone, there
might be sufficient testimony to go to the jury to say
whether there was a delivery of any spot cotton; but the
testimony shows that they claim for cotton delivery in
October, November, and December, and there is not a scintilla
of evidence to show that there was any purchase of cotton for
November.' (4) For that his honor erred, further, in
invading the province and usurping the functions of the jury
in holding as follows: 'There is some little testimony to
show that there was some cotton (spot cotton) purchased in
October (some 200 bales), but, taken in connection with Mr.
Riordan's whole testimony, it shows that it was dealing
in cotton futures; and, according to the law as laid down in
Gist v. Telegraph Co. (S. C.) 23 S.E. 143, the
plaintiffs have not furnished enough testimony to make proof
required of them.' (5) For that his honor erred in
granting a nonsuit, when there was sufficient evidence to go
to the jury to show that Lehman Bros., and Hopkins, Dwight & Co., and other parties from whom Hanckel & Riordan, through
whom plaintiffs claim, purchased cotton for the account of
the defendant, were the owners of said cotton, and that it
was the bona fide intention of the parties, at the time of
the making of the contracts, to deliver and to receive the
cotton in kind. (6) For that his honor erred in holding that
the act of 1883, relating to contracts for the sale of
articles for future delivery, was applicable to the facts of
this case, when it appeared from the testimony that Hanckel & Riordan, through whom the plaintiffs claim, were not parties
to any contract for such sales, but were simply the brokers
of the defendant, and made contracts with other parties upon
the orders and for the account of the defendant, and in
granting a nonsuit in the case on that ground. (7) For that
his honor erred in granting a nonsuit when there was evidence
to go to the jury upon all the issues in the case. (8) For
that his honor erred in not holding that Hanckel & Riordan,
having become the agents and brokers of the defendant, and
bought and sold cotton for the account of the defendant, at
his request, were entitled to recover for all losses paid by
them, or advances made in the discharge of their duty as such
agents and brokers, and that the plaintiffs succeeded them in
such right, and in not refusing the motion for a nonsuit upon
that ground. (9) For that his honor erred in not holding, and
refusing to grant a nonsuit upon the ground, that, if there
had been an illegal contract made between the defendant and
other parties, the same had been ended, executed, and
terminated; and that, if Hanckel & Riordan, through whom
plaintiffs claim, advanced money upon the request of the
defendant, either express or implied, to pay losses of the
defendant on such contracts, the plaintiffs were entitled to
recover the same from the defendant. (10) For that his honor
erred in not holding, and refusing to grant a nonsuit upon
the ground, that the contract between Hanckel & Riordan,
through whom plaintiffs claim, and the defendant, was one of
agency, and that the plaintiffs were entitled to recover for
advances made by said Hanckel & Riordan, or for losses paid
by them, for the account of the defendant and in the
execution of such agency. (11) For that his honor erred in
not holding, and refusing to grant a nonsuit upon the ground,
that, the contract between the said Hanckel & Riordan and the
defendant being one of agency, the plaintiffs were entitled
to recover from the defendant for all losses paid or advances
made for the account of the defendant in the execution of
their agency, unless it appeared that they had engaged in
illegal transactions; and that, if so, the burden was upon
the defendant to show it. (12) For that his honor violated
section 26 of article 5 of the constitution of the state in
undertaking to decide any question of fact, or to judge of
the weight or sufficiency of the testimony, in the case, when
said section provides simply that he 'shall declare the
law.' (13) For that his honor violated section 25 of
article 1 of the constitution of the state, by not submitting
the issues of fact in the case to the jury."
McIVER
C.J.
This
was an action to recover from the defendant an alleged
balance due Hanckel & Riordan for money advanced and cash
paid for said defendant between the 1st of September, 1891,
and the 1st of December, 1891, by said Hanckel & Riordan, at
the request and for the use of said defendant; the plaintiffs
being the successors and assignees of the said Hanckel & Riordan, and as such the legal owners and holders of said
claim. The defendant, in his answer, denies each and every
allegation in the complaint, except such as are therein
afterwards admitted or qualified; and alleges, substantially,
that the claim made by the plaintiffs is based upon and grew
out of contracts for the future delivery of cotton which were
entered into by the said Hanckel & Riordan and the defendant
on and after the 1st of September, 1891, which were illegal,
void, and without effect. The only testimony offered by the
plaintiffs
was that of James Riordan, one of the plaintiffs, who was
likewise one of the members of the said firm of Hanckel & Riordan, together with a cipher code, and sundry telegrams
and letters sent Hanckel & Riordan by the defendant. The
plaintiffs also offered to introduce in evidence the rules
and by-laws of the New York Cotton Exchange for the year
1891, which was objected to on the ground that there was no
evidence that the defendant had assented to the rules and
by-laws, and they were ruled inadmissible unless the
knowledge of the same was brought home to the defendant. At
the close of plaintiffs' testimony a motion for a nonsuit
was made upon the ground that there was no evidence
"that at the time of the contracts, bargains, or
agreements the seller was the owner or assignee of the 200
bales of cotton, or that it was the bona fide intention of
both parties to the contract that the same should be actually
delivered and actually received by the parties thereto."
This motion was granted, and, judgment having been entered,
the plaintiffs appeal upon the several grounds set out in the
record, which should be incorporated in the report of this
case. We do not propose to consider these grounds seriatim,
but will consider the several points raised thereby.
The act
of 1883, now incorporated in the Revised Statutes of 1893 as
sections 1859, 1860, and 1861, or so much thereof as is
pertinent to this case, contains the following provisions
(section 1859): "Every contract, bargain or agreement
whether verbal or in writing, for the sale or transfer at any
future...
