Ware v. Burleson, 3545.

• Court: Texas Court of Appeals
• Writing for the Court: Jackson
• Citation: Ware v. Burleson, 41 S.W.2d 338 (Tex. App. 1931)
• Decision Date: 22 April 1931
• Docket Number: No. 3545.,3545.
• Parties: WARE v. BURLESON et al.

Page 338

41 S.W.2d 338

WARE v. BURLESON et al.

No. 3545.

Court of Civil Appeals of Texas. Amarillo.

April 22, 1931.

Rehearing Denied May 13, 1931.

Appeal from District Court, Lamb County; Charles Clements, Judge.

Suit by J. W. Ware against F. M. Burleson and another. Judgment for defendant named, and plaintiff appeals.

Affirmed.

T. Wade Potter and Bills & Hazel, all of Littlefield, for appellant.

Lockhart, Garrard & Brown, of Lubbock, for appellees.

JACKSON, J.

J. W. Ware, the plaintiff, instituted this suit in the district court of Lamb county, Tex., against the defendants F. M. Burleson and B. M. Willingham, to recover $1,250, with interest and attorney's fees thereon, evidenced by a promissory note executed by the defendant and payable to the order of J. W. Ware & Co., a copartnership.

The plaintiff alleges that he has acquired the note from the copartnership and is the legal and equitable owner thereof. The allegations of his petition are sufficient to authorize a recovery on the note, interest, attorney's fees and costs.

The defendant F. M. Burleson answered by general demurrer, special exceptions, and general denial.

He pleaded failure of consideration, and alleged that in the fall of 1924 J. W. Ware & Co. were dealing in cotton futures in New Orleans, and maintained an office and agent for their business in Lubbock, Lubbock county, Tex. That he and his codefendant were engaged in buying and selling spot cotton, and that J. W. Ware & Co. were acting as brokers for those who desired to buy or sell future contracts, or what is commonly known as cotton futures. That the defendants purchased through the plaintiff, as brokers, contracts for the sale and purchase of cotton futures. That the note was executed to cover a balance which the plaintiff claimed that the defendants owed by reason of the purchase and sale of cotton futures. That none of the parties to the transactions understood or contemplated that there would be any actual delivery of the cotton sold or acceptance of the cotton purchased. That all of such contracts constituted wagers, schemes for gambling, and were illegal; that the note was given to cover margins on the future cotton market and was not given for any cotton actually delivered or intended to be delivered. That all of such transactions were void under the laws and decisions of the state of Texas and of the United States, against good morals and public policy, and unenforceable.

No service having been had on B. M. Willingham, on motion of the plaintiff he was dismissed from the case.

The case was submitted to the court without the intervention of a jury, and he rendered judgment that plaintiff take nothing by his suit, and that defendant go hence without day with his costs, from which judgment this appeal is prosecuted.

The appellant, by numerous assignments, all of which we will consider together, assails as error the action of the trial court in rendering judgment against him, because of the insufficiency of the testimony to support the findings of the court.

The court found, in effect, that the transactions with the defendants were handled by the agent of J. W. Ware & Co., at Lubbock, Tex.; that J. W. Ware & Co. received the orders and the defendants sent the orders with no intention or agreement for the actual delivery of the cotton sold or bought; that it was not the intention of either of the parties to any of the transactions that the purchase and sale of the cotton should be consummated by actual delivery; that none of the parties had any facilities for handling the cotton, and that it was the intention of all the parties that the profits and losses should be determined by the fluctuations of the market; that settlement should be made upon the basis of the market quotations at the New Orleans cotton exchange; that the note was given in settlement and as a continuation of gambling transactions in cotton futures; and that the defendants received no consideration for the execution and delivery of the note.

Mr. Keno, Jr., the office manager of J. W. Ware & Co., during the time the transactions were had with the defendants, testified that the company was a member of the New Orleans cotton exchange and cotton brokers engaged in selling and buying cotton futures for their customers. That they required a deposit of their customers of $5 to $10 per bale to protect fluctuation in prices. That they extended to the defendants credit on account for the sum of $1,000; that, when the account reached that sum, they demanded more margin,...