The clarion. [volume] (Jackson, Miss.) 1883-1888, 1886-05-12
GREEN Cray

1OokcT q w ii-Oa ttt tHC Ff~tNN-
Affirmed.
GREEN CLAY
VS..
T. II. ALLIES &Co-
Appeal from the chaneery court OF Boil
var county. Hon. W. q. Phelps,
Chancellor.
ARNOLD, J., delivered the opinion OF the
court.
Thos. III. Allen s Co. filed petition
against Green Clay, executor OF the es'
tate of w. G.. Movers, deceased, to re
cover SI5I0.69 interest alleged to be due
by Meyers to them. The petition set
out that Movers had instructed them to
sell for him 500 bales of cotton to be de
liverrd by MIN ia the future; that they
sold the cotton through Latham, Alex
auder & Co.. in New York City; that
under instructions from Meyers to ex-
ercise their Judgment aud discretion II
the matter. when the time for delivery
arrived. they ordered that 800 oales of
cotton be purchased and delivered for
Meyers ard that the above sum sued
for remains due them from Meyers on
| the transaction. Green Clay, the exec
utor replied that the cotton ordered to
| be sold was never intended TO be deliy
cred by any of the parties, but it was 10
| be settled by the payment OF differences
| The chancellor found for the complain
| ant, and ordered that an account be
| taken to determine the amount due.
/ IL was shown ii evidence that the
compliments received no compensation
but acted entirely as 60 betweens in the
| transaction, furnishing the money 81
credit. Evidence was introduced which
tended to show that Meyers never IN
| tended to deliver any cotton. The oai,
evidence Of the intention of the Other
parties 10 the transaction was In refer
ence t, the general course and tenor oil
SUCH contracts and the usual intention
of the parties thereto. The deiendan
appeaied.
Hld-Tnat the transaction IN ques
ton occurred prior to the act OF lSS.
SO prohibit the sale aud purchase o
futures" aud construction of tina
statute is not involved 10 the case. Th'
defence made by appellant that tn
amount claimed by appellee on opel
account grew ont o. and vas paid b.
them on a gambling transaction, o
which they were cognlz2nt and IN which
they participated, is not sustained by tn
} proof II is not unlawful to buy or sci
: commodities To be delivered at futur
dav. e zen il at the time of the purchas
the seller has none to deliver and nj
means of obtaining them except to g
into the market aud buy them, if tn
parties really intend or agree that tn
goods are to be delivered and the pric
paid. Such proceeding is void onl
when the real interest of the parties
to speculate in the rise and fall OF prices
and the goods are not to be delivered
! but one party is to pay the other tn
!, difference between the contract pric
and the market price OF goods at tn
date fixed for executing the Contract
) The character Of the transaction Is dt
! rived from the intention Of the partle
and both parties must concnr IN the vi
; cious intent TO bring the transactio
under the denunciation Of the la
, against gambling. If either party cor
} tracts ia good faith aud c0ntemplates
sale to be followed by the constituent
4 of delivery and payment, he is ehtitie
; to the benefit of the contract: no matte
} what may have been the secret inter
2 ton or purpose of the other party
The court is unable 10 determine fror
? the testimony what the intent of tn
r parties was. Ii Is no new doctrine l
2 this State to say that the burden Q
: proof rested on the appellant, who a
legged the illegality Of the TRANSACTION
t aud it was incumbent on hin to prov
r it or 20 show everything necessary
+ make it so. Where a contract is suscel
tibie of two interpretations, the one leg
5 and the other illegal, the one which rel
= ders it lawful must be adopted.
5 Miss BOG
E Frank Johnston and ". T. & J.
e Harris for the appellant.
Nugent & Melville for the appelle