147 Tenn. 338 | Tenn. | 1922
delivered the opinion of the Court.
The questions presented in this case arise principally upon the answer and cross-bill of the defendant J. B. Thomas. The original bill was filed by Shepard & Gluck against Thomas to recover on a note of $4,100, and to enforce a lien on and to sell some warehouse receipts issued by the Memphis Terminal Corporation, ivhich had been deposited by the defendant with the complainants as collateral security for the payment of the note. The defendant Thomas admitted the execution of the note and the
The motion to dismiss the writ of error must be denied because the oath filed shows that at the time thereof.the defendant was a resident of Shelby county, Tenn., and, owing to his poverty, is unable to prosecute the writ of error, and,-it being made to appear affirmatively by the affidavit of the defendant that he is a resident of the
Another preliminary question arises, and that is .as to the effect to be given by this court to the verdict of the jury upon which the decree is based; it being contended by the defendant that the verdict of the jury should be considered as only advisory to the chancellor, and not conclusive, because the demand for a jury was made by the defendant in his answer and cross-bill during the time when chapter 90 of the Acts of 1919, abolishing jury trials in chancery courts, was in force. The trial of the cause was had after the repeal of that act in 1921. The original bill was filed June 5, 1920. The answer and cross-bill demanding a jury trial was filed June 10, 1920. By the act of 1919, which was in force at that time, a defendant could have a trial by a jury in any case in which the chancery court acquired jurisdiction by virtue of chapter 97 of the Acts of 1877 by an order made in the chancery court either in term time or in chambers transferring the cause to the circuit court of the county. This right of trial by jury did not exist under the act of 1919 in causes of action in which the chancery court had original jurisdiction prior to the act of 1877. Miller v. Washington County, 143 Tenn., 488, 226 S. W., 199; Exum v. Griffis Newbern Co., 144 Tenn., 240, 230 S. W., 601.
The chancery court did have jurisdiction independently of and prior to the passage of the act of 1877, since the principal purpose was to enforce an equitable lien, and therefore the defendant was not entitled to a jury trial. Neither was he entitled to a jury trial on his cross-bill because the court acquired jurisdiction thereof independently of the act of 1877. The effect of the act of 1919 was
Assuming for the present that there is evidence to support the findings of the jury, the facts either conceded or found by the jury are these: The defendant Thomas, whose residence and place of business is in the State of Mississippi, was engaged in buying and selling cotton, and had been for a number of years, being an experienced business man in that line. lie had done some business with Shepard & Gluck, a partnership or firm of brokers who carried on the business of acting as agents and brokers for cotton buyers and sellers in the cotton exchange in NeAV Orleans, La. This firm maintained offices in the city of Memphis, Tenn., and also in Clarksdale, Miss. They were members of the New Orleans Cotton Exchange, and did business on the exchange principally by telegraph. In February, 1920, Thomas gave orders to Shepard & Gluck to sell for him on the Exchange three hundred bales of cotton for delivery in the following July. Between that time and April 9, 1920, the market had fluctuated, and the price of cotton advanced to such extent that the brokers required that Thomas put up as a deposit to secure the brokers $1,500 in cash and execute the note sued on in this case, and as collateral thereto he deposited the warehouse receipts referred to. At about the same date Thomas directed his brokers to purchase three hundred bales of cotton for delivery in the following October, and Thomas directed his brokers to stop his losses or close out his contract when cotton reached the sale price of .3925 per pound upon the New Orleans Exchange. On the 15th of April, the price of cotton having reached .3925, his contract for the sale of cotton Avas disposed of at that price, the transactions having resulted in a loss to Thomas in the sum of $3,781.97, the amount of the decree plus interest.
In the brief of counsel for the appellant it is claimed that, issue No. 5 submitted to the jury was answered in the negative. This contention is stated in the brief as follows: The jury’s verdict “in many respects is contradictory. As to question 5: ‘Did the party to whom Shepard & Gluck, or from whom they bought, when executing these orders of Thomas, disclose their intention as to acceptance or delivery of the actual cotton?’ Ans. ‘No.’ ” This shine issue is quoted in the brief of complainants, and the answer is “Yes.” The transcript of the record accords with the contention of the complainants, and the answer is therein shown to be in the affirmative.
“The plain intent of this section as amended is while declaring unlawful all the transactions conducted in and through a bucket shop as described and defined herein, to make lawful and enforceable and to withdraw from the provisions of .the gaming and wagering statutes of this State, all transactions executed upon and in accordance with the rules of a legitimate produce, stock or cotton exchange or board of trade, and this act shall be liberally construed at all times so as to effectuate this object.’
If the contracts are not in violation of the laws of Mississippi, it will not be necessary to determine by the laws of what state the question is controlled. The statute of Mississippi (Code 190G, section 2303) on the subject of what constitutes future contracts that cannot be enforced reads as follows:
2303. Future Contracts Not Enforced, etc. — A contract for the purchase or sale of a commodity of any kind, to be delivered at a future date, the parties not intending that the commodity is to be actually delivered in kind and the price paid, shall not be enforced by any court, nor shall any contract of the kind, commonly called ‘futures’ be enforced, nor shall a contract in this section mentioned be a valid consideration, in whole or in part, for any promise or undertaking, and any person who shall make any such contract and by reason thereof, lose any money, property or other valuable thing, real or personal, and shall pay or deliver the same or any part thereof, may, or his Avife or
From the section of the Mississippi law just quoted it is readily seen that a contract dealing with futures is void, only when at the time of the contract the parties did not intend that the commodity was to be actually delivered in kind and the price paid. According to the findings of the jury, concurred in by the court, the parties in this transaction did at the time intend that delivery should be made in kind and the price paid. So that-this contract cannot be avoided by reason of anything found in the statute referred to, if indeed there is any evidence to support the findings of the jury. Chapter 118 of the Acts of 1909 of the Mississippi legislature is not different from that quoted in defining what constitutes an unlawful contract in connection with dealings in future deliveries of commodities. Hut it is contended that by sections G and 7 of said act of 1909 certain acts constitute prima-facie .evidence that such contracts are void, and that there is no dispute in this record of the existence of such prima-facie evidence. These sections provide:
“Sec. 6. That proof of anything of value agreed to be sold and delivered was not actually delivered, and that one of the parties to such an agreement deposited or secured, or agreed to deposit or secure, what are commonly called margins, shall constitute prima-facie evidence of the making or negotiating of a contract declared unlawful by the terms of this act.
“Sec. 7. That proof that any person, association of persons or corporation, whether as principal or agent, has
It is established beyond controversy that the cotton involved here was not actually delivered in kind, and that Thomas, the defendant, did deposit margins to protect his trades. It is furthermore established without controversy that the complainants did have established offices and places where were posted and published from information received the fluctuating prices of cotton and other commodities. So that, if we are bound by the foregoing statutes of Mississippi, and the law of Mississippi controls, then clearly the defendant established the illegality of these contracts. In our opinion these provisions relating to what constitutes evidence of illegal transactions under the Mississippi laws are not binding and cannot govern the decision of the question by the courts of Tennessee, but we are controlled by the law of this State on that subject. We have' the fact established in this case by the finding of the jury to be the very opposite of that. The same evidence would have determined to the contrary under the laws of Mississippi What is sufficient to make out a case, whether certain evidence makes a prima-facie case, cannot be determined by the laws of Mississippi, but must be determined by the laws of this State.
The rule which we deem applicable is stated in 5 R. C. L., p. 1045, as follows:
“The weight of authority, as well as sound principles of reason, is in accordance with the rule that questions of evidence are governed by the law of the forum, and that
The cases cited by the author of the article above referred to fully warrant and sustain the principle stated.
Jones v. Chicago, etc., Railway Co., 80 Minn., 488, 83 N. W., 446, 49 L. R. A., 640, is directly in point. That was an action to recover damages for personal injuries alleged to have been caused to plaintiff by the defendant’s negligence. The accident happened in the State of Wisconsin. Suit was brought in the State of Minnesota. A statute of Wisconsin was set out in the complaint. That
“Whether a xvitness is competent or not, whether certain matters require to be proved by writing or not, whether certain evidence proves a certain fact or not, are to be determined by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it.”
In Emery v. Burbank, 163 Mass., 326, 39 N. E., 1026, 28 L. R. A., 57, 47 Am. St. Rep., 481, the Massachusetts supreme court' held that an oral contract to make a will, although valid in the State where it is made, cannot be enforced in Massachusetts against inhabitants of that State, since an action must be controlled by the policy of the
In Stack v. Detour Lumber Co., 151 Mich., 21, 114 N. W., 876, 16 L. R. A. (N. S.), 616, 14 Ann. Cas., 112, it was held that a general law of the State where a corporation is organized, depriving it of the benefit of the usury laws, does not follow it into another State where it is authorized to do business, so as to prevent it from taking advantage of the local statute against usury in an action to foreclose a mortgage executed and to be performed in that State and secured upon lands there situated.
Heaton v. Eldridge, 56 Ohio St., 87, 46 N. E., 638, 36 L. R. A., 817, 60 Am. St. Rep., 737, was an action in Ohio on promissory notes, and the defendant set up a counterclaim for damages resulting from the breach of an oral contract. This agreement was made and was to be performed in Pennsylvania, where the law did not require a contract of that kind to be in writing. The statute of frauds was held by the court to be matter of procedure. The writing is not the contract itself, but merely the evidence of the contract; the statute forbidding the maintenance of an action on any agreement unless supported by the required written evidence. The admission or rejection became a part of the proceeding on the trial, where it was held its competency or insufficiency must be determined. 56 Ohio St., 87, 46 N. E., 638, 36 L. R. A., 820, 60 Am. St. Rep., 737.
The cross-bill in this case proceeded upon another theory, and that is that, conceding the contract to be legal, it was breached by the complainants by the sale or transfer of Thomas’ contracts before exhaustion of his margin and without his knowledge, and it is contended by Thomas that the answer of the jury to the effect that at the time the contracts were disposed of there was no stop loss order in
There is an assignment of error that the trial judge failed to construe the pleadings and to clearly define and distinctly state to the jury the issues submitted for their determination. This assignment is overruled. Specific issues by questions and answers were submitted to the jury. They had nothing to do except make an answer in the affirmative or negative to the specific questions asked. It Avas unnecessary, therefore, to give any detail explanation of the pleadings or of the rules of law which would govern the court in the decision of the case. There is no complaint that the instructions Avere insufficient with respect to the method to be folloAved by the jury in ascertaining and determining the proper ansAvers to make.
There is no error in the judgment of the chancery court, and the same will be in all things affirmed, with costs.