57 So. 962 | Ala. | 1911
Appellant, having lost its case and suffered judgment for costs in the court below, undertook to execute a supersedeas as provided by section 2873 of the Code rather than security for costs only as provided by section 2872. This supersedeas is defective in two particulars: Thomas R. Roberts, who was one of the parties defendant to the judgment, is not named among the obligees. The sureties are not named in the body of the bond. No notice was taken of these defects at the time of the submission; but. now appellees urge in their brief that the appeal ought to be dismissed by this court ex mero. Besides taking issue bn the propriety of the proposition thus advanced, appellant has lodged with the clerk an affidavit showing that said Roberts was dead at the time the judgment was rendered, and offers to the court through the same agency a sufficient supersedeas bond in all respects regular as to form. These efforts to present a better record come .too late, and, so far as the suggestion of the death of Roberts is concerned., that should have been made in the trial court.
This action was brought by appellant as indorsee of a promissory note executed by the defendants to J. F. Hooper, and by the latter negotiated to the plaintiff. The defense was rested upon the alleged illegality of the ■consideration, taking the form, to state it generally, that the obligation sued upon arose out of gambling iiansactions in cotton futures by the defendant Currey. The other defendants joined in the note as sureties. Pleas 10, 12, and 13, the issues made by which were submitted to the jury, and the sufficiency of which is questioned ou this appeal, will be set out by the reporter in his statement of the case. However defective these pleas may be, we are to consider only that ground 'Of objection to them taken in the court below and renewed here as a reason for reversal. Something is said in the brief .to the effect that'material facts are averred in the way of recital only, but we think the criticism may be said to be hypercritical at best, and we find nothing of it in the demurrer. The objection to be considered briefly is that defendants have failed to aver that it rvas mutually understood and agreed between the parties to the contracts for the sale of future delivery cotton that there was to be no delivery in fact. The language of plea 12, to deal with that as fairly illustrative of the rest, is that.it was not “contemplated or intended by either of the parties * * * that the actual cotton would be delivered,” but it was “contemplated and intended by all of said parties that, when the time for delivery arrived, differences would be settled by paying or receiving the
Plea 13 alleges that defendant Currey contracted with J. F. I-Iooper to purchase cotton for future delivery through Norden & Co., brokers in New York, there being no intention on the part of defendant, Hooper, or Norden & Co., that the cotton should be delivered. The replication avers that Norden & Co. purchased from Weld & Co. and others, and that the sellers “did not know of and participate in the alleged unlawful purpose of Currey.” The theory of the replication is that the contracts of sale were between the New York sellers and the defendant Currey, and that the concurring unlawful purpose or intention of both parties is necessary to render these contracts unlawful. The proposition of law involved in this contention is not denied in its proper application. But the pith of the plea is that defendant employed Hooper to procure for him contracts with others which were to be settled by the payment of differences only; Hooper advancing money or credit for that purpose. If Hooper, under this employment, procured contracts which could be settled only by the actual delivery of cotton on the demand of either party, Hooper, or those through whom he acted, if they
In plea 10 plaintiff’s assignor is not shown to have been a party to the transactions out of which arose the liability sought to be enforced. The averment is that A. B. Hooper used the name of plaintiff’s assignor, and that “part of the consideration of the note sued on was and is commissions charged by the said A. B. Hooper for his services as a broker in negotiating and consummating said transaction,” all the parties to which, to state the further effect of the plea, intended it for a gambling transaction. The demurrer to the replication, which averred that the note was executed by the defendant to plaintiff’s assignor to reimburse him for money of his used in the transaction, was no doubt susstained on the idea that whether plaintiff’s assignor did or did not know the illegal nature of the transaction, and though, if ignorant, he was entitled to have his money, yet, when he accepted and sued on a note securing unlawful commissions along with the rest, he adopted the transaction as a whole. The note was tainted with illegality. It was impossible to say which part of the consideration induced the promise; and defendant’s demurrer to the replication was properly sustained. — Folmar v. Siler, 132 Ala. 297, 31 South. 719; Pettit v. Pettit, 32 Ala. 288.
It appeared without conflict that A. B. Hooper, son of plaintiff’s assignor, J. F. Hooper, assisted his father in carrying on the latter’s business, which in general was banking, and the transactions in controversy were negotiated by him in his father’s name. There was no
It has long been a paid of the statute law of this state that “all contracts, founded in whole or in part, on a gambling consideration, are void.” — Code, § 3338. The act of March 7, 1907 (Acts, p. 448 et seq.; Code, §§ 3349-3352, 6473-6478), enumerates and declares void certain “future contracts,” including contracts for the sale of cotton, provides criminal punishment for all persons avIio become parties to such contracts, and establishes a rule of evidence for controversies arising out of such contracts. In so far as the act of 1907 enumerates those contracts Avhich shall be held void, its probable effect, if not its purpose, Avas to Avithhold the law’s denunciation from contracts in commodities not numerated. In so far as it declares void the enumerated contracts, it re-enacts section 3338, and declares again the laAv as it had been declared by this court on several occasions. It does not purport to effect, nor could it effect, any change in the substantive rights of the parties to the transactions at issue which were had
Reversed and remanded.