The watchman and southron. [volume] (Sumter, S.C.) 1881-1930, 1911-05-10


can be sold for future delivery in
this State unless bona fide delivery OF
the cotton is intended, is emphasized
by the Supreme Court in a decision
handed down today. The statutes
provide against dealing in so-called
futures" and the cotton must actuaT-
ly be delivered to make the contract
effective.
IN the opinion. which is by Chief
Justice Jones, the Circuit Judge is
sustained in overruling a demurrer in
tEo case Of Maybank & Co against f.
NJ. Rogers, Of Florence. The case will.
therefore, be tried on it's merits. The
amount involved is $17,1S7.5O.
The demurrer overruled by Judge
Ernest Gary was upon two causes Of
| action involving two contracts for
sale and delivery Of cotton.
F. M. Rogers, it is alleged, agreed
TO sell to Maybank & Co. on June %.
1909, 500 bales of cotton, thu same
to be delivered at Florence between
December Is and 80. The contract
| price was 10 1-2 cents per pound. 1t
is stated in the complaint that 1t was
| the bona fide intention of the seller
| to deliver the cotton. On December
81 the market price of cotton was
10 is cents per pound.
The suit was brought by Maybank
| & Co. when the cotton was not de-
| livered, to recover the difference be-
| tween tn contract price and the
| market price and the market value on
the date named. The amount involv-
ed in this was s1y,562.50.
Another contract was made July
II, 1909, for 500 bales at IL 1-2 cents
per pound. The selling price on De-
| cember 2 was IL ga cents, the cotton
was to have been delivered by the
1st. For the difference in the price
Of contract and the market value on
| December 2 the Manybank firm de-
mands 1865.
| The two contracts for cotton not
delivered by F. M. Rogers involve
| $171S7.50, difference in prices oc-
casioned, 1t is alleged, by the non
delivery.
| F. M. Rogers sought to have the
complaint thrown out on a demurrer
on three grounds.
First-that the parties to the con-
tract did not intend for the cotton to
actually be delivered
Second-That the plaintiff sought
to recover the profits by reason of
the difference in price, but did not
purchase cotton to replace the cotton
bought on contract from the defend
ant and did not suffer any actual loss.
Third-The dates fixing the price
were in each case a day later than
the limit for delivery. (This ground
abandoned.)
That in the sense that the word Is
used on Change no futures" are to
be permitted in South Carolina, is
shown by the Court in quoting Sec
ton 2,31O Of the Code, as follows.
| Every contract, bargain or agree
mcnt, whether verbal or in writing,
for the sale or transfer at any fu-
ture time OF any cotton shall be void,
| unless 1t is the bona fide intention of
both parties to the said contract, bar
gain or agreement, at the time Of the
making of the same, that the cotton
SD agreed to be sold and transferred
shall be actually delivered in kind by
the party contracting to sell and de-
! liver the same, and shall actually be
received at the time in kind by party
contra citing to receive the same at the
period in the future mentioned and
specified in the said contract bar
gain or agreement for the transfer
and delivery Of the same"
Such a complaint alleging that a
|
was made constitutes a cause Of
action. In this case such a COM
plant was had SO that the ovarruling
Of the demurrer was proper, decides
the Court.
1T is true" writes the Court,
that the statute (Section 2,311)
places the burden of the proof on
the plaintiff to establish the bona
| fide intention of the parties at the
time of making the contract, but il
is not necessary to state the eviden-
clary matter by which such intention
may be established"
The Court Overruled the conten-
tion about the actual purchase of cot