Southwestern Bell Telephone Co. v. Bagley & Co.
| Decision Date | 14 January 1929 |
| Docket Number | (No. 96.) |
| Citation | 12 S.W.2d 782 |
| Parties | SOUTHWESTERN BELL TELEPHONE CO. v. BAGLEY & CO. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Monroe County; W. J. Waggoner, Judge.
Action by Bagley & Co. against the Southwestern Bell Telephone Company. Judgment for plaintiff, and defendant appeals. Reversed, and cause dismissed.
Edward B. Downie, of Little Rock, for appellant.
Bogle & Sharp, of Brinkley, for appellee.
Bagley & Co., the appellee, is engaged in the cotton business in Memphis, Tenn. L. A. Waddell was employed by appellee as a cotton buyer for its Memphis branch. On the 30th day of September, 1926, Waddell, representing Bagley & Co. in Arkansas, purchased 132 bales of cotton from different parties in Cotton Plant, Ark., and late the same afternoon called the central office of the appellant at Brinkley and told the operator that he wanted to talk to A. T. Le Fils at Memphis. After making repeated inquiries, Waddell was informed by the operator that he was connected with Mr. Le Fils' home, but that Mr. Le Fils was out, and that Mrs. Le Fils was on the line. Waddell agreed to talk with her, and did talk with some woman who said she was Mrs. A. T. Le Fils and would convey to her husband the information that Waddell wanted him to have.
Waddell told her that he had purchased 132 bales of cotton, and she said she would convey the information to her husband. Waddell relied on the truthfulness of the statements made to him by appellant's operator at Brinkley that he was connected with the home of Le Fils and talked with Mrs. Le Fils. He did not have an opportunity to talk with Le Fils, and did not talk with him until the evening of the following day after the market had closed. He then learned that appellant's employees had not connected him with Le Fils' home, and that he had talked to some other party.
If Waddell had talked to Mrs. Le Fils or Le Fils, and given him the information that he had purchased 132 bales of cotton, Le Fils would have sold a similar number of bales on the future market the morning of October 1. He could, on October 1, have sold 132 bales of cotton for 14.25 cents per pound, but, because of his failure to communicate with Le Fils at that time, he was forced to sell for 13.53 cents per pound, the market having declined.
Appellee alleges that, on account of defendant's carelessness and negligence, it has been damaged .72 cents per pound on 132 bales; a total of $475. Appellee's contention is that he lost the amount of money sued for, not on the bales of cotton that he actually bought in Arkansas, but because he did not buy futures on October 1, and that he lost the difference between the price on October 1 and the price at the time he got the information; that the damage was caused by the telephone company negligently giving him the wrong party.
Waddell testified that he lives at Brinkley, and was a cotton buyer for Bagley & Co., and that Bagley & Co.'s main office is in Nashville, Tenn.; that he bought the 132 bales of cotton, as alleged in the complaint, and he was in the habit of telephoning to the Memphis branch when he would buy cotton, so that the Memphis office could sell cotton against it; in other words, hedge. He testified that they would have sold cotton on the board and would not have sold it for delivery; would just sell at future market, and, if the price went up, he would be all right, and if it went down, he would take a loss on that purchase. He did not sell the 132 bales that he had purchased, but what they wished to do was to sell on the board 132 bales to protect the cotton that witness had bought. It was never the intention to deliver that cotton. It was merely sold on the board. After they would sell this on the board, then, when the actual cotton was sold, he would take up his hedge. On that particular business, if he sold the 132 bales, he did not intend to deliver any actual cotton. He would deliver against his selling. When selling on the board he does not intend that there is going to be an actual delivery.
There was considerable evidence about the negligence of the appellant company and about the manner in which cotton was bought and sold and the damages that resulted on account of the negligence of the appellant in this case. We do not think it necessary to set out any of that testimony, for the reason that the appellee itself states that the telephone communication was desired for the purpose of selling futures.
Appellant submits four reasons why the judgment should be reversed. First, it is contended that the damages are special, and appellant had no notice or knowledge of the circumstances, etc. It also contends that appellee was guilty of contributory negligence, and also that under the rule of the company it does not assume the responsibility of insuring that the party answering the telephone is the party called for. We do not decide any of these questions, for the reason that, according to appellee's own showing, this was a gambling transaction, and is prohibited by our statute, and for that reason no recovery can be had in this case.
Section 2652 of Crawford & Moses' Digest prohibits maintaining an office for dealing in futures, and section 2653 of Crawford & Moses' Digest reads as follows: "Every contract or agreement, whether or not in writing, whereby any person or corporation shall agree to buy, or sell and deliver, or sell with an agreement to deliver, any wheat, cotton, corn, or other commodity, stock, bond, or other security to any person or corporation, when in fact it is not in good faith intended by the parties, or either of them, that an actual delivery of the article shall be made, is hereby declared to be unlawful, whether made or to be performed wholly within this State or partly within and partly without the State; it being the intent of this act to prohibit any or all contracts and agreements for the purchase or sale and delivery of any commodity or other thing of value on margin, commonly called dealings in futures, when the intention or understanding of the parties or either of them is to receive or pay the difference between the agreed price and the market price at the time of settlement, and any person violating the provisions of this section for each transaction shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not less than five hundred nor more than five thousand dollars, and upon conviction for a second offense, in addition to said fine, the defendant shall be imprisoned in the county jail not exceeding twelve months."
The appellee, however, contends that the cases of Harris v. Western Union Tel. Co., 136 Ark. 63, 206 S. W. 52, and Western Union Tel. Co. v. Osborn, 136 Ark. 68, 206 S. W. 54, are cases where the facts are similar to the facts in the present case. Or, rather, he contends that the facts in the instant case bring it clearly within the rule announced by this court in the two cases above mentioned.
In the case of Harris v. Western Union Tel. Co., 136 Ark. 65, 206 S. W. 53, this court said: "The testimony affirmatively shows that actual delivery of the corn bought and sold was contemplated by the parties, and the transactions set out above were evidenced by elevator receipts for corn duly assigned."
In the instant case the testimony affirmatively shows that there was no actual delivery of the cotton contemplated. On the contrary, the appellee's witnesses...
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