Puckett v. Wilson Bros. Mercantile Co.

WILLSON, O. J. (after stating the facts as above). A contention presented by four of the five assignments is that the undertaking declared on was a gambling contract in vior *643 lation of law. It is insisted that, because it was,such a contract, the trial court erred when he overruled the exceptions to appel-lee’s petition, and when he refused to instruct the jury to find in appellant’s favor. [1] The claim that the contract was illegal is predicated on the Act April 10, 1907 (General Laws, p. 172; Vernon’s Penal Code, arts. 538 to 547). Provision is made in section 6 of said act for punishment of a person who “makes or offers to make for himself any future contract.” In section 2 a “future contract” is defined as follows: “1. A sale or purchase, or contract to sell, or any offer to sell or purchase, any cotton * * * to be delivered in the future, when it was not the bona fide intention of the party being prosecuted under this Act at the time that such sale, contract, purchase, or offer to sell or purchase, was made, that the thing mentioned in such transaction should be delivered and paid for as specified in such transaction. 2. Any such sale, purchase, offer or contract, where it was the intention of the party being prosecuted hereunder at the time of making such contract or offer, that the same should, or, at the' option of either party, might be settled by paying or receiving a margin or profit on such contract.” It will be noted that whether the contract sued on was a “future contract” within the meaning of the statute, or not, depended on the intention of the parties at the time they made it. It was not such a contract if it was not their intention that it “should, or at the option” of either of them, “might be settled by paying or receiving a margin or profit” thereon, but, instead, was their intention that the cotton should be actually delivered and paid for as specified therein. It will also be noted that the jury found that neither of the parties intended at the time they made it that the contract “should or might be” so settled, but, on the contrary, intended that the cotton “should be actually delivered and paid for under said contract.” [2, 3] If effect should be given said findings, it is plain that appellant’s contention should be overruled; for it would then appear that the contract was not an illegal one because a “future contract” within the meaning of the statute. The findings are not attacked in any of the assignments. Therefore they must be given effect, unless it should be said the contrary thereof so conclusively appeared from the face of the contract that the court should have declared it to be illegal as a matter of law. Should the court have done that? We think not. The most the court had a right to say was that the contract, because it was for delivery of cotton in the future, was prima facie illegal. If it was only prima facie (that is, presumptively) illegal, appellee had a right to show that it was in fact valid (that is, he had a right to rebut by proof to the contrary the presumption the law raised of illegality because of the fact that the cotton was bought for delivery in the future). It may be there is a conflict between the conclusion we have reached and that reached by the Court of Civil Appeals of the Third District in Pate v. Wilson Bros. Merc. Co., 208 S. W. 235. In that case the contract in question was like the one here sued on. When the case was first before it, said court held that the contract was prima facie illegal, because it showed on its face that it was for future delivery of cotton, and because it showed on its face that it “might be settled at the option of either party by paying the profit or loss without delivering the cotton”; and further held, as we have here, that-Wilson Bros. Mercantile Company had a right to rebut the presumption of illegality by proof to the contrary. The court reversed the judgment in favor of Wilson Bros. Mercantile Company, because said company had not by proof rebutted the presumption. So far there is no conflict between the holding in that case and the holding in this one. The conflict, if there is any, arises from the fact that the court on a rehearing, without withdrawing or in any way qualifying what they had said when the case was first before theim, held the plaintiff’s petition, which declared on the contract, to be subject to a general demurrer. If tire conflict between the ruling in that case and the ruling in this one is a real one, we think the ruling in that one is erroneous in the light of the authorities. Vernon’s Penal Code, arts. 539, 545, 546; 13 C. J. p. 783; 2 Elliott on Contracts, § 995 et seq.; 6 R. C. L. p. 783 et seq.; 12 R. C. L. p. 751 et seq.; Seeligcon v. Lewis, 65 Tex. 215, 57 Am. Rep. 593; Cleveland v. Heidenheimer, 44 S. W. 551; Heidenheimer v. Cleveland (Sup.) 17 S. W. 524; Wolffe v. Perryman, 93 Ala. 290, 9 South. 148. [4] The remaining assignment challenges as erroneous the action of the trial court in refusing to permit appellant to prove by John Young and other named witnesses that, about the time appellant and appellee entered into the contract here sued on, they (respectively) and appiellee entered into a contract like the one here in question, and at the time they (respectively) did so were told by appellee that they (respectively) “need not deliver the cotton, but could pay the difference according to the terms of the contract in money.” The only controverted issue in the case, as we view it, was one as to the intent of the parties when they made the contract. In support of his contention that an actual delivery of the cotton was not intended we think the testimony excluded was admissible. Raby v. Prank, 12 Tex. Civ. App. 125, 34 S. W. 777; Davis v. Vories, 141 Mo. 234, 42 S. W. 707; 10 R. C. L. p. 938 et seq. As we are not satisfied that the error in *644 excluding the testimony did not cause the rendition of an improper judgment in the case, the judgment will be reversed, and the cause will be remanded for a new trial. Footnotes [1] <g=>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes^