50 S.C. 537 | S.C. | 1897
The opinion of the Court was delivered by
This was an action to recover from the defendant an alleged balance due Hanckel & Riordan for money advanced and cash paid for said defendant, between the 1st of September, 1891, and the 1st of December, 1891, by said Hanckel & Riordan, at the request and for the use of said defendant, the plaintiffs being the successors and assignees of the said Hanckel & Riordan, and as such the legal owners and holders of said claim.
The defendant, in his answer, denies each and every allegation in the complaint, except such as are therein after-wards admitted or qualified; and alleges, substantialfy, that the claim made by the plaintiffs is based upon and grew out of contracts for the future delivery of cotton, which were entered into by the said Hanckel & Riordan and the defendant on and after the 1st of September, 1891, which were illegal, void, and without effect. The only testimony offered by the plaintiffs was that of James' Riordan, one of the plaintiffs, who was likewise one of the members of the said firm of Hanckel & Riordan, together with a cipher code, and sundry telegrams and letters sent Hanckel & Riordan by the defendant. The plaintiffs also offered to introduce in evidence the rules and by-laws of the New York Cotton Ex-changefor the year 1891, which was objected toon the ground that there was no evidence that the defendant had assented to the rules and by-laws, and they were ruled inadmissible, unless the knowledge of the same was brought home to the defendant.
At the close of plaintiffs’ testimony, a motion for a non-suit was made, upon the ground that there was no evidence “that at the time of the contracts, bargains or agreements, the seller was the owner or assignee of the 200 bales of cotton, or that it was the bona fide intention of both parties to the contract that the same should be actually delivered
This being so, our next inquiry is, whether there was any testimony tending to show either one of the facts which, as we have seen, were essential to the plaintiffs’ right to recover. After a very careful examination of the testimony, we are compelled to say that we are unable to find any such evidence. The point to be established is, that at the time of making the contract for the sale of any of the cotton for future delivery, the seller was the owner thereof, or that the seller was authorized, by the owner or his duly authorized agent, to make such sale, or that it was the bona fide intention of both parties that the cotton should be actually delivered and received; and of this we find no evidence. The fact that, after the co7itract was 7nade, the seller chose to deliver the cotton, as in the case of Hopkins, Dwight & Co., does not fulfill the requirement of the statute. As we understand it, in these dealings in “cotton futures,” as it is called, the seller may, if he chooses,'actually deliver the cotton contracted to be sold within the time specified, or, if he prefers, may accept or pay, as the case may be, the difference in the price, and so the buyer may, if he chooses, demand actual delivery, or accept or pay, as the case may be, the difference in the price. It was probably for this reason that the provision was inserted in the statute requiring a plaintiff, when he seeks to enforce
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.'