Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1882-06-21
CIRCUMSTANCES Af.rRn
CASEs.b
Futures NSt Gambling Neces.
sarily, so Says a Louisiana
Court.
Nov OrIeans Picayune, l7th.

New Orleans Picayune, 18th.
Judge Monroe yesterday delivered an
opinion in the case of Brittin & Bright VS..
Chas. G.. johnson, which is interesting,
as it touches upon the legality of cotton
future" contracts.
Brittin & Bright entered suit for $2342 80
on promissory note given them by Ohas.
G. johnson. The defendant filed an an
swer that the note was given contra bonos
mores, and that the note was given with
out lawful consideration.
The plaintiffs are future brokers" en-
gagged in the business of buying and SELL
ing cotton upon orders for future deliv-
cry; their business being carried on in the
New Orleans Cotton Exchange, of which
they and the defendant were members.
About October l, 1880, defendant re-
quested them to sell for his account, for
November delivery, 400 bales of cotton,
and further instructed them to sell an ad-
ditional amount with each decline of ten
points IN the market It is stated that
defendant knew that the order given
would be executed in the Cotton Ex-
change, subject to its rules. Nothing was
said as to defendants intentions upon the
subject of the delivery of the cotton.
Defendant deposited $500 as margin
to secure the contract to be made. He
testified that his instructions were that he
was not permitted TO lose more than that
amount.
Judge Monroe, who decided the case on
Friday, said that this testimony was in
conflict with that of Brittin, who states
that nosuch instructions were given. Brit
tin in this respect is borne out by the fact
that when the loss was ascertained to be
$2342 so, defendant gave a note for that
amount, secured by mortgage, which he
would not have done had the loss been in
CURED without authority.
From the rules of the Cotton Exchange
upon the subject it is manifest that every
purchase and sale of cotton made in the
Exchange under its rules necessarily con-
templates the actual delivery of the cot
ton bought and sold, whatever may be the
secret desire or intention of either one or
the other, or both of the parties, to such
contract. 1t is shown, without contradic-
ton, that in all such contracts the con-
tract TO that effect, as does the party whose
offer is accepted, it is of little moment
whether an actual delivery is agreeable to
such party last named or not. He must de-
liver or receive the cotton according to the
terms OF the contract, and not agreea
bly, to his unexpressed wishes and inten-
tions.
Each case depends, from the conclusions
reached, upon its own peculiar circum-
stances, and it by no means follows that
because court holds in particular case
that right to tender or demand actual
delivery is preserved, and that whilst, as
a general rule, the right is waived by a
subsequent agreement, nevertheless it is
exercised whenever it suits either of the
parties to exercise it, When contract
is made under the rules of the Cotton
Exchange the secret intention OF one par
ty cannot control the contract, since the
party accepting the offer may desire and
intend that the cotton shall be delivered;
and as by his acceptance he makes a con-
tract in the form of a sale of cotton or
some other commodity for futur5 deliv-
cry is gambling transaction, that, there
fore, such a contract, perfectly valid in
form, is necessarily and in all cases faint
ed with the same vice. since to justify this
conclusion would be to imply violation
of law and good morals where none is
shown,
These remarks apply to the cases to
which the Court has been referred, and in
which the decisions are dependent upon
totally different facts from those disclosed
IN this record. None of these, however go
beyond the proposition that when a con-
tract is made purporting to be contract
for the future delivery of some article or
commodity, with the stipulation or under
standing, expressed or implied, that no
such delivery is to be made, but that the
parties are to settle by paying and receiy-
ing the difference between the price named
in the contract and the market price at
the date fixed for delivery, then such
contract is against public policy and can
not be enforced.
The Court will close this opinion by
merely quoting from one or two of the
decisions which have been referred to and
which sustain the views herein above ex-
pressed. 1t would be Improbable, if not
impossible. in view Of the brevity of life
and of the obligation of the Court to other
litigants, to undertake to analyze and
combat all the vagaries which have, from
time to time, found expression upon this
subject, and which, ii applied to the facts
presented in tho case at bar. would be
found TO have no more bearing than the
Salic law.
In the case of Clark VS.. Foss, decided in
the United States (Western) DistrictCourt
OF Wisconsin, the following quotation of
tho syllabus will show that the views
which have been hereintctore expressed
are not without precedent. The syllabus
reads as follows;
l. A contract for the delivery at flu
ture time Of peraonal property which the
seller has not on hand when the contract
Is made, nor any means Of getting IL, is
not void for illegality.
2. The secret intention of one of the
contracting parties not to fulfill his con-
tract, uncommunicated to the other, is not
enough to make the transaction illegal.
3. The intent that such transaction should
be mere betting on the market, without any
expectation Of actual performances, must be
mutual, and constitute An integral part0 Of the
contract, In order to render it inya id.
4. II the contracts we're valid IN their in
ception, and not tainted with any gambling
intent or device, subsequent mutual settle
ment by the parties. by payment Of difference
instead Of actual delivery, cannot make them
void for illegally.
For tho reasons given, there must be judg.
mont for plaintiff as prayed for.
Judgment was also rendered in favor o.
plaintiffs in the case of Lewis d Williams W
Chas. G.. johnson, the same reasons applyinI
TO that case.
LIFE INSURANCE.