The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1910-03-09


tract at the suggestion of the defen-
dant here, Hurst. and that those in
terlineations were made by f. II. Du-
val, who was the clerk of his father,
Nj. w. Duval. the agent of Sprunt &
Son. those interlineations were APP
proved by Sprunt & Son through their
agent. Nj. w. Duval; all of them tend
to confirm what appears upon the
face Of the printed form of the con-
tract, that there was an expectation
at the time on the part OF the defen-
dants, Hurst-Streator Co. to de-
autumn of that year, in September
and October, actual cotton was deliv-
cred in conformity with this contract,
10 the extent of about 115 bales. a
little later still, according to the tes-
timony, agent of Sprunt & Son call
ed upon Hurst-Streator Company TO
deliver more cotton to them, actual
cotton; that he was informed by the
defendants that they had the cotton
on hand. mixed up with other cotton,
and that 1t would take some time TO
separate 1t, and that this agent of the
plaintiff went to Chesterfield, to the
defendants, talked with them about
the cotton which was in the yards of
a nd
cure the one hundred bales that he
had been informed was on hand, and
offered to assist in having it delivered
to the railroad station in accordance
with his contract. but that some days
elapsed before that was accomplished
and at the request Of the defendants.
acquiesced in by Duval, the agent of
the plaintiffs, a settlement for that
100 bales was made in money, and
s1,6S7.50 was paid on that account
il was for the money so paid that this
cOunter-claim was set up, ant. the
favor of the defendants for that
amount. The court must refuse to
give such direction. 1t would not hes
itate to direct verdict for that
amount II 1t believed that this was,
which Is contended for by the defsn-
dants, gambling transaction, hut be-
lieving. as 1t does, that 1t was the bona
fide intention of the parties ut the
time the contract was made to deliv-
er the cotton, the actual cotton, the
mere fact that the plaintiffs, after that
time. late in October, after vainly en-
6eavoring to OBTAIN the actual cotton,
sai'ins to receive il, accepted payment
In cash, does not throw any light upon
what the intention of the parties was
at the time the contract was entered
into. What was the intention of the
parties at the time must govern, and
If they intended then. that is on May
II, a bona flde transaction, If it was
the intention then on the part of the
defendants to deliver and on the part
of the plaintiffs to receive actual cot
ton, as expressed in this contract,
then 1t does not vitiate it, because af-
terwards, when they were unable to
get the actual cotton they accepted
payment in cash. 1t would be other
wise IL in the inception there was any
evidence that this was a mere GAM
bling transaction. 1 believed in the
case of Springs against Carpenter that
that was a gambling transaction, but
in that case the court held that not
withstanding the defendants claims
1t was a gambling transaction, there
was no evidence sufficient to go to the
jury to establish the invalidity of tn.
contract. and therefore it was the du.
ty of the court to direct a verdict.
NOW, II there was any conflict OF
testimony If there was any room for
a reasonable doubt as to what this con-
tract was. 1 should prefer to submit
that question to the jury, and upon
the inception Of the case that was the
inclination of my mind, to let the jury
decide whether this was a bona fide
transaction or whether it was a gam
bling contract; but, reviewing the tes-
imony, endeavoring to recall all that
was said and all that was done, can't
see that there can be any other than
one conclusion. Feeling that it would
be my duty to set aside the verdict If
the jury should find in favor of the
defendants. which I doubt that il
would, but IL 1t did 1t would be my
duty TO set 1t aside 1 feel that it is my
duty to direct the foreman to find a
verdict for the plaintiffs for the
amount claimed.
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