Wolfe v. Andrews

• Decision Date: 20 January 1917
• Docket Number: (No. 7678.)
• Citation: 192 S.W. 266
• Parties: WOLFE v. ANDREWS.
• Court: Texas Court of Appeals

192 S.W. 266

WOLFE v. ANDREWS.

(No. 7678.)

Court of Civil Appeals of Texas. Dallas.

January 20, 1917.

Appeal from District Court, Wood County; R. M. Smith, Judge.

Action by M. H. Wolfe against H. G. Andrews. From a judgment for defendant, plaintiff appeals. Affirmed.

M. D. Carlock, of Winnsboro, J. E. Gilbert, of Dallas, and D. Upthegrove, of St. Louis, Mo., for appellant. Beavers & Wilkinson, of Winnsboro, Harris, Suiter & Britton, of Quitman, and Jones & Jones, of Mineola, for appellee.

RAINEY, C. J.

Appellant sued appellee to recover $5,193.92 on a transaction for the purchase and sale of 1,600 bales of cotton. Appellee answered by general and special demurrers, which were sustained, and appellant refusing to amend, judgment was rendered for appellee, from which this appeal is taken.

The first, second, and seventh assignments of error complain of the sustaining of demurrers, to wit: General demurrer and special demurrers to the effect that the plaintiff's petition shows on its face that it was a wagering or gambling contract, and contrary to public policy; that the petition alleged, in effect, that defendant sold and delivered to plaintiff 1,600 bales of cotton at 14.39 cents, basis middling, which was a complete sale, and the title thereto fully vested in plaintiff; and that in said contract was an additional paragraph wherein plaintiff and defendant entered into a wager or bet as to the future price of cotton, which made the liability, if any, of one to the other depend upon the decline in the price of cotton, which constituted a gambling transaction in violation of law.

The petition to which demurrers were sustained, omitting formal parts, alleged as follows:

"That heretofore, to wit, on or about December 23, 1910, and dated as of said date plaintiff and defendant made and entered into the following contract in writing, signed by them respectively, to wit:

                             "`Dallas, Texas, Dec. 28, 1910
                

"`Mr. R. G. Andrews, Winnsboro, Texas — Dear Sir: We confirm purchase from you this day through Mr. Will Rash, Sulphur Springs, Texas, of the following cotton: Sixteen hundred (1,600) bales cotton at 14.39¢, basis middling, based on March New Orleans at 15.14¢, your option of fixing the price during market hours at any time between now and March 1, 1911, by giving notice to us of the time you select to fix the price. It is understood that at the time you select to fix the price if March New Orleans is above 15.14¢ we will pay you the difference, but if March New Orleans is below 15.14¢ you will pay the difference. Please confirm the sale by signing and returning the attached copy of this letter.

                    "`Yours very truly
                        "`M. H. Wolfe & Co., per J. H. H.'
                

"`The above contract is accepted. R. G. Andrews.'

"That thereupon, and under the terms of said contract, defendant shipped and delivered to plaintiff the 1,600 bales of cotton specified in said contract, and invoiced the same, and on the 29th day of December, 1910, plaintiff advanced to defendant $118,014.99, including exchange of $218.36 upon said 1,600 bales of cotton. By the terms of the contract aforesaid, and in accordance with the interpretation thereof by the parties thereto, the defendant reserved the right to fix the price of the cotton at which he would consummate the deal, not being willing to sell at the price prevailing in the market on the date of the shipment and contract, but defendant retained an interest therein, together with said right to fix the sale price at any time prior to March 1, 1911, as named in said contract, to be governed by the terms of the contract and the basis being what is known among cotton men as basis middling and based on the prevailing price in New Orleans, and reserving the right of fixing the price during the market hours at any time before March 1, 1911, by giving notice to plaintiff of the time defendant should elect to fix the price, and based upon the prevailing price at New Orleans, as specified in said contract, and that if the defendant did not sooner elect to fix the price the limit fixed in the contract within which the right should be exercised by defendant should be March 1, 1911, as in said contract stated, and that if it was not sooner fixed the market conditions on that date should bind both parties. That by the terms of said contract, option to fix the price was under the exclusive control of defendant, and it was immaterial to plaintiff at what date defendant elected to fix the price prior to March 1, 1911. That plaintiff advanced to defendant, as aforesaid, the total sum of money aforesaid...