53 S.C. 173 | S.C. | 1898
Lead Opinion
The opinion of the Court was delivered by
The action herein was brought upon the following complaint: “1. That the defendant is a corporation duly chartered under the laws of the State of South Carolina. 2. That on the 21st day of July, 1897, the plaintiff contracted with the defendant to make a sale for him of cotton for future delivery, to wit: in November, 1897, and to cover the loss that might be sustuined in such sale, paid over to the defendant as a margin the sum of $150, and took its receipt for the same. That the said contract was made between the plaintiff and the defendant without intention on the part of either that the said cotton should be actually delivered in kind by the plaintiff, if received in kind by the defendant or the person to whom they might sell, and it was, in fact, no more nor less than an act of gambling in cotton futures. 3. That the defendant failed to carry out its contract with the plaintiff, and on demand has refused to repay him the said sum of $150, and has become liable to pay him the said sum, under the provision of section 1861 of the Revised Statutes, plaintiff having brought this action within three months from the payment to the defendant of the said sum.” (Omitting the prayer.)
The defendant demurred to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action, in that it does not allege that the plaintiff has paid to the defendant any sum or sums of money for and on account of a loss sustained by reason of the alleged contract;
It is the judgment of this Court, that the order sustaining the demurrer be set aside, and the cases remanded for a new trial.
Dissenting Opinion
dissenting. The case is so fully and fairly stated in the opinion of Mr. Justice Gary that any restatement here would be wholly unnecessary. The question arises under a demurrer to the complaint upon the ground that the complaint does not state facts sufficient to constitute a cause of action. This action is, confessedly, brought for the recovery of money paid by plaintiff to defendant in pursuance of a contract which the plaintiff, in his complaint, shows was an illegal and void contract under our statute law, viz: “gambling in cotton futures;” and the plaintiff, in his complaint, expressly bases his right to recover upon section 1861 of the Revised Statutes. The first allegation in the complaint, after the formal allegation of defendant’s corporate character^ is, “that on the 21st day of July, 1897, the plaintiff contracted with the defendant to make a sale for him of cotton for future delivery, to wit: in November, 1897, and, to cover the loss that might be
It is said, however, that the complaint may be sustained under the second branch of sec. 1861 of the Revised Statutes. The second branch of the section, substantially, pro
Neither do I think that this complaint can be sustained as stating a cause of action for money had and received at common law. In the first place, it is not framed in that aspect; and even if it were, it could not be sustained, under the case of Mordecai v. Dawkins, 9 Rich., 262, where it was held that a note given for money lent to game with is void, even in the hands of an innocent holder. In that case, O’Neall, J., in delivering the opinion of the Court, uses this strong language: “We have, therefore, concluded, on a full review, that it is better at once to say, that not only the security for the reimbursement of the money lent to play with is void, but also that the money itself cannot be recovered back.” How much stronger is this case, where it appears
It seems to me, therefore, that the judgment of the Circuit Coyrt should be affirmed.
Concurrence Opinion
concurring. I concur on the ground that the complaint, under a liberal construction, contains allegations which tend to show a cause of action under the last clause of sec. 1861, which provides that '■'■any person * * who shall accept or receive * * any moneys * * in furtherance thereof (i. e., in furtherance of the making or execution of a contract for the future sale of cotton, &c., as are declared void under sec. 1859), shall be held liable in an action by the party to recover the amount or value of the moneys so received, &c.”