Shannon v. McClung

• Decision Date: 01 November 1923
• Docket Number: 7 Div. 416.
• Citation: 210 Ala. 273,97 So. 840
• Parties: SHANNON v. MCCLUNG.
• Court: Alabama Supreme Court

97 So. 840

210 Ala. 273

SHANNON v. MCCLUNG.

7 Div. 416.

Supreme Court of Alabama

November 1, 1923

Appeal from Circuit Court, Dekalb County; W. W. Hararson, Judge.

Action by J. J. Shannon, doing business as Shannon & Co., against W H. McClung. From a judgment for defendant, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Affirmed.

Ellis &amp Matthews, of Birmingham, for appellant.

C. A Wolfes, of Ft. Payne, for appellee.

GARDNER J.

Suit upon common counts. The defense rested upon the insistence that the litigation arose out of a transaction commonly known as "cotton futures," condemned by the statute in this state, and that therefore the contract was void and unenforceable. Acts 1915, p. 913; Levy, etc., v. Jones, 208 Ala. 104, 93 So. 733; U.S. Cotton Futures Act, 38 Stat. p. 693; 39 Stat. 476; U.S. Comp. St. 1916, vol. 6, p. 7291.

The cause was tried before the court without a jury, resulting in a judgment for defendant, from which plaintiff has prosecuted this appeal.

No prejudicial error resulted from the action of the court in overruling demurrers to plea 4, as this plea was in effect the general issue.

We are of the opinion the averments of pleas 5 and 6 are sufficient to show that the transaction came within the condemnation of the statute. These pleas show that in the making of the contract for purchase of cotton to be delivered at a future date, the parties did not intend that the cotton should be actually delivered in kind and the price paid. We construe this language as necessarily disclosing that the parties intended to gamble upon the difference in the contract price and the market price. There was no error in overruling the demurrer interposed to those pleas. Nor do we consider plea 7 subject to any assignment of demurrer interposed thereto. Kolsky v. Enslen, 103 Ala. 97, 15 So. 558.

Counsel for appellant insist the proof was insufficient to sustain the judgment, and lay much stress upon the ruling of this court, in Levy v. Jones, supra, wherein it was held that the above cited Act 1915, p. 913, superseded the provisions of article 5, c. 67, of the Code of 1907, upon this question including, of course, section 3351 as to "prima facie evidence of void contract." The act of 1915, in section 4, makes provision for a different rule as to what constitutes prima facie proof, to the effect that the fact the contract was not made subject to the...