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removed from the office, was largely a defaulter. There was testimony tending to show that some or all of the money borrowed from Collier was applied by Stevenson in support of the public schools. There was also testimony showing that the money refunded by Collier to Haley reduced pro tanto what otherwise would have been the amount of Stevenson's default, for which his sureties would have been liable. This, appellant contends, raised an implied promise on the part of the sureties to repay the money to Collier. The par. ticular ground on which this contention is rested is that, to the extent Collier's money was so used, it reduced the liability of the sureties, and that they availed themselves of it in their settlement, paying that much less on account of Stevenson's default. We have shown above that no obligation, legal or moral, rests on the sureties to refund to Collier the tax money he was required to restore to Haley, Stevenson's successor. He thereby only returned a trust fund to its proper custodian,-a trust fund which he had acquired illegally, and held illegally. There is as little merit in the other phase of his contention. Stevenson borrowed the money from Collier without authority, and, as the sequel showed, to supply a deficit in the school funds, caused by his own misuse of them. His sureties are not shown to have had any connection with the negotiation of this loan. As to them, it was res inter alios. It was a voluntary parting with his money by Collier, not in obedience to their request, and not in consequence of any legal liability resting on them to pay it. No one can gratuitously, or without request, pay money for another, and thereby make that other his debtor, unless he is first under a legal liability to pay, such as that of a surety, indorser, or guarantor, who, after default of his principal, pays the money, or unless the payment is made to relieve his property from an incumbrance which the other is bound to remove. Weakley v. Brahan, 2 Stew. (Ala.) 500, Stephens v. Brodnux, 5 Ala. 258; Kenan v. Holloway, 16 Ala. 55; 3 Brick. Dig. p. 786, SS 55,60. If we were to pronounce in favor of this suit, we would thereby declare that if A. lends money to B., and B. with that money pays a debt on which C. is his surety, thus relieving C. of his liability, A. may maintain an action against C., and reimburse himself for the money lent to B., although C. was not consulted, and had nothing to do with the transaction. The authorities relied on by appellant furnish no warrant for this suit, although they may be sound envugh in the cases in which the judgments were rendered. Afirmed.

LEE 0. BOYD.

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(Supreme Court of Alabama. February 25, 1889.) GAMING-GAMBLING CONTRACTS-PLEDGE OF SECURITIES.

Where one transfers certain bonds in his possession, but of which he is not the owner, to A. to obtain money for the purpose of buying “cotton futures,” there being no intention that any cotton shall be delivered, but simply that the difference in price shall be settled according to the market fluctuations, and A. advances the money with knowledge of the purpose for which it is to be used, he cannot hold the bonds as against the real owner, although he has no notice of the defect in the title of his assignor; and the rule is the same whether the transaction be considered a sale or a pledge of the bonds. Appeal from circuit court, Pike county; JOHN P. HUBBARD, Judge.

H. D. Boyd, guardian, sued C. L. Lee in trover. Upon the evidence, as produced on the trial of the case, the court charged the jury, ex mero motu, as follows: “That although Lee may have purchased the bonds from Higgins and paid the money for them without any knowledge of plaintiff's claim or right thereto, yet, if he knew the purchase money was to be applied to the purchase of what is known as .cotton futures,' then he could not be protected as a purchaser for value without notice, although said bonds were ne

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gotiable.” The defendant excepted. The plaintiff then asked the court to give the following charge in writing, and the defendant excepted to such giving by the court: “If the jury believe from the evidence that Lee knew when he let Higgins have the money that Higgins intended to use it in the pur. chase of cotton futures, then the contract is void." The defendant then asked the following charges in writing, and excepted to the court's refusing to give the same: "(1) If the jury believe the evidence in this case, they must find for the defendant. (2) If the jury believe from the evidence that Lee paid Higgins 50 cents on the dollar for the bonds, though he did so with the knowl. edge of the fact that be intended to invest the same in cotton futures; and further that Lee bought in good faith, and without any knowledge of Miss Stricklan's (the ward's] claim or right to the bonds,—then they must find for the defendant, Lee." There was verdict and judgment for the plaintiff, and the defendant, Lee, appeals.

Gardner & Wiley and John Gamble, for appellant. M. N. Carlisle, for appellee.

SOMERVILLE, J. The action is brought for the alleged conversion by the defendant, Lee, of certain bonds of the city of Troy, Ala., which the plaintiff, Boyd, claims as the property of a minor child, of whom he is the legal guardian. These bonds, according to the plaintiff's version of the case, had been pledged by one Higgins as collateral security for money advanced by Lee to be invested in a joint purchase of what is commonly known as “cotton futures." According to the defendant's version of the testimony, however, they had been sold to him for 50 cents on the dollar, the proceeds to be applied by Higgins' direction to pay his half of the bonus required for the purchase of such futures, “subject to the rules of the New York Cotton Exchange.” If the contract of loan, on the one hand, or of sale, on the other, as the case inay be, is illegal, the plaintiff is entitled to recover, even though the bonds in question be regarded as negotiable instruments; for in the former alternative the pledge of the bonds, made to secure an illegal loan, would be equally void with the loan itself; and, in the latter, if the contract of sale be illegal, although binding between the immediate parties as being in pari delicto, the purchaser cannot be protected as a bona fide holder, so far as concerns the plaintiff, who is the true owner of the securities sued for in the action. The purpose to which the money was to be devoted was an illegal enterprise, being a bet or wager on the future price of cotton, which the evidence tends to show was to be promoted by the defendant on joint account with Higgins, who procured from him the money, whether by pledge or sale of the bonds, for the furtherance of this express design. The evidence, if believed, shows that the transaction was a mere speculation in cotton “futures;" that no cotton was actually intended to be delivered, but the whole speculation was dependent upon the future rise or fall in the price of cotton, as governing the loss or gain of the venture,—a simple staking of “margins;" in other words, to cover the difference in price. The evidence fails to show what were the rules of the New York Cotton Exchange, controlling such transactions, and we cannot assume to know what they were. The case must stand upon the evidence contained in the record.

In Hawley v. Bibb, 69 Ala. 52, it was decided by this court that a bill given for money to be advanced to the maker by the payee, to enable hit to engage in buying and selling such futures in the state of New York, was a mere contract founded on a loan, or an advance of money to bet, as a wager, on the future price of cotton, and as such would be illegal and void between the immediate parties and purchasers with notice, as a contract made in violation of the public policy. The rule, accordingly, is now generally established by authority, that where an optional contract for the purchase or sale of property is made, and there is no intention on the one side to deliver, or on the

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other to actually buy, but merely that the difference in price should be settled according to the market fluctuation—the rise or fall—in the value of the commodity, the contract is a mere wager or bet upon the future price of the commodity, and is reprobated by the law, and void for illegality. Bigelow v. Benedict, 70 N. Y. 202; Gregory v. Wendell, 39 Mich. 337; Kirkpatrick v. Bonsall, 72 Pa. St. 155; Fareira v. Gabell, 89 Pa. St. 89; Yerkes v. Saloinon, 11 Hun, 473; Grizewood v. Blane, 11 C. B. 526, 73 E. C. L. 526; Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. Rep. 160; Bish. Cont. § 534.

The enterprise itself being a cotton-gambling transaction, it becomes im. material whether the bonds were pledged or sold by Higgins to Lee, provided the parties had in contemplation at the time a joint investment for their mutual benefit; Lee knowing that the money was intended to be used in furtherance of it. If the money was loaned or advanced for this express purpose, the contract of borrowing would be illegal, and the pledge of the bonds to secure it equally so, as in violation of the public policy. Bish. Cont. § 535; Raymond v. Leavitt, 46 Mich. 447, 9 N. W. Rep. 525; Comly v. Hillegass, 94 Pa. St. 132; Milner v. Patton, 49 Ala. 423; Hanauer v. Doane, 12 Wall. 342; Shepherd v. Reese, 42 Ala. 329; De Leon v. Trevino, 30 Amer. Rep. note, pp. 107-112; 1 Daniel, Neg. Inst. (30 Ed.) § 200; 2 Rand. Com. Paper, g 535; Morgan v. Groff, 5 Denio,

364. The case of White v. Yarbrough, 16 Ala. 109, is entirely unlike this case. There, money had been advanced by one of the payees of a note to a third person, at the request of the maker, in payment of a debt due by such maker for an illegal wager; the illegal transaction being then complete, not in contemplation, and the parties to it having no common interest. So, on the other hand, if the bonds were purchased by Lee for the purpose of aiding Higgins to raise the money to engage in such illegal enterprise, in the fruits of which the seller and buyer were jointly interested, the latter knowing the uses to which the proceeds were to be devoted, the sale would be illegal, and, although binding on the seller and buyer, as an executed illegal sale, the defendant, as buyer, could not claim to be a bona fide purchaser, or innocent holder, so as to cure the infirmity of title arising from the fact that the bonds did not belong to Higgins, but to the ward of the plaintiff, for whose benefit this suit is brought. The illegality of the transaction would taint the title of the buyer so as to destroy the bona fides of the purchase as fully as actual fraud or want of consideration would do. McCall v. Rogers, 77 Ala. 349; Saltmarsh v. Tuthill, 13 Ala. 390; Ramsdell v. Morgan, 16 Wend. 574:

Under these principles, the court did not err in any of its rulings so far as the appellant is concerned. The jury having found for the defendant Mount, we do not consider the rulings affecting him alone. It is sufficient to say that the charge given ex mero motu by the court was correct; and there was no error in giving charge numbered 2, requested by the plaintiff, nor in refusing charges numbered 1 and 3, requested by the defendant. The fourth charge is abstract in referring to the testimony of one Curtis, which is not set out in the bill of exceptions. The other rulings we need not discuss further than to observe that they were either erroneous, misleading, or prejudicial only to Mount, who does not appeal. Affirmed.

HALL 0. STATE.

(Supreme Court of Alabama. February 27, 1889.) MANSLAUGHTER—EVIDENCE-Res Gestg.

In a prosecution for manslaughter, the evidence showing that the homicide had grown out of a quarrel between the defendant and the deceased, held, that the declarations of one, on finding a pistol near the scene of the killing, two days after such homicide, that such pistol belonged to deceased, were inadmissible as part of the res gestæ.

Appeal from circuit court, Calhoun county; LEROY F. Box, Judge.

The indictment in this case charged in the first count that one Hall “unlawfully and intentionally, but without malice, killed Robert E. Lewis, by striking him with a rock;" and in the second count, "by striking him with a brick bat." On the trial, as is shown by the bill of exceptions, the evidence showed that the defendant, who was a colored boy about 18 or 19 years old, was in the employment of one Brock, and was engaged in cultivating a small tract of land planted in corn and peas, while the defendant lived in the outskirts of the town, not more than 80 or 100 yards distant; that the cattle in the neighborhood had frequently broken into ihe field which the defendant was cultivating, but, as to whether the cattle of the deceased were among them, the evidence was conflicting; that on September 3, 1887, late in the evening, the defendant drove cattle out of his field, and drove them past the house of the deceased, throwing stones or brickbats at them; that some of the stones or brick bats fell in the porch of the house of the deceased, who thereupon came out, and some angry words passed between them; that the defendant went back to his field, followed by the deceased; and that just as the deceased had climed over the fence, and was inside the field, “the defendant threw a rock or brickbat at him, striking him on the head and crushing in his skull," from the effect of which blow the deceased died during the ensuing night. The defendant proved by one of the state's witnesses, on cross-examination, that on Monday morning after the difficulty, which occurred on Saturday evening, he went to the field in company with two other persons, one of whom was a brother-in-law of the deceased, by name Kernan; that a small derringer pistol was picked up from the ground, within about three feet of where the deceased was found lying; that said pistol was found to be loaded and cocked, and was handed to said Kernan, who then said: “This is Bob's pistol.” The court, on motion of the state, excluded this evidence, and the defendant thereupon excepted. It was also shown that said Kernan resides in Anniston, about 10 or 12 miles distant from the court-house of the county, but was not present at the trial, and no effort had been made by the defendant to procure his attendance.

Ellis & Brock, for appellant. T. N. McClellan, Atty. Gen., for the State.

SOMERVILLE, J. The court did not err in excluding from the jury the testimony of the state witness as to Kernan's declaration identifying the pistol as one belonging to the deceased. This pistol was found on the second day after the homicide, being picked up in the locality where the killing had occurred. The language of Kernan, “This is Bob's pistol," was no part of the res gesta or act of killing, which was completed two days previously. It was a mere comment or observation of a by-stander as to a collateral fact, and was clearly hearsay. The witness Kernan should have been called into court to testify as to the alleged ownership of the weapon by the deceased. Whart. Crim. Ev. (8th Ed.) SS 262, 263; Johnson v. State, 59 Ala. 37; Horton v. State, 53 Ala. 488; Garrett v. State, 76 Ala. 18; Sylvester v. State, 71 Ala. 17; Railroad Co. v. Hawk, 72 Ala. 112.

Affirmed.

HODGES et al. o. DENNY.

(Supreme Court of Alabama. February 28, 1899.)

1. WITNESS-COMPETENCY--TRANSACTIONS WITH DECEASED.

The vendor of land, who transferred to complainant the purchase-money notes in suit, having died, the testimony of defendant, the vendee, as to transactions and statements between himself and the deceased vendor, in regard to the sale, is in. competent, under the statute, and properly excluded.

2. VENDOR AND Vendee-DESCRIPTION OF LAND-PAROL EvidencF.

A bond for deed described the land as "all the land lying on the north side of Denny's ferry and Rock Mills road, and four acres on the south side of said road, containing in all 82 acres, more or less; said land off of the N. W. 14 of the S. Y of sect. 13, and a part off of the west end of S. 2 of sect. 12, in town 24, range 25." Held, that, notwithstanding the words, “82 acres, more or less, "and in view of the uncertainty of description by metes and bounds, parol evidence was admissible on behalf of the vendee, to show that the sale was in fact by the acre, and that the

parties adopted this mode of description to fix the aggregate price. 3. SAME-MISTAKE IN QUANTITY-ABATEMENT OF PURCHASE PRICE.

It appearing that the vendor represented that the tract contained about 25 acres more than it really did contain, the mistake is so gross and palpable that equity will afford the vendee relief by abatement of the purchase price. Appeal from chancery court, Chambers county; S. K. MOSPADDEN, Chancellor.

The bill in this case was filed by the appellee, William S. Denny, as transferee of the original vendor of the lands in controversy, J. C. Pearson. The bill made the appellant, C. C. Hodges, the administrator of J. C. Pearson, and the heirs of said Pearson parties defendants. The only question raised is the abatement of the amount agreed to be paid by the defendant Hodges, as purchase money for the land, upon which it is sought to charge a vendor's lien in favor of the complainant.

J. M. & E. M. Oliver, for appellants. N. D. Denson, for appellee.

CLOPTON, J. In a suit by a transferee of a promissory note against the personal representative of the maker, the transferrer is not a competent witness, on the part of the transferee, as to any transaction with or statement by the deceased maker. A transfer of the subject-matter of the suit does not operate to take the living party out of the exception to the statute rendering parties competent witnesses. Mutuality in its operation is the policy and purpose of the statute. Its provisions exclude the living from testifying to any transaction between himself and the dead, in all cases where the effect of the evidence is to diminish the rights of the deceased, or those claiming under him, and where the presumption exists that the dead, if living, could explain, qualify, or contradict. Any other construction of the statute would tend to introduce the corrupting influences in the administration of the law which it is the design of the exception to prevent. The vendor, who transferred to the complainant the purchase-money notes, having died, the defendant, who is the vendee, comes within the spirit and policy of the statute. The chancellor did not err in excluding his testimony as to transactions and statements between himself and the deceased vendor. Boykin v. Smith, 65 Ala. 294; Miller v. Cannon, 84 Ala. 59, 4 South. Rep. 204.

Appellee seeks by the bill to charge a, vendor's lien on land sold defendant by J. C. Pearson. The defendant seeks, by cross-bill, an abatement of the amount agreed to be paid, on account of an alleged deficiency in the quantity of the land; alleging that it was sold, and the gross sum of the purchase money ascertained, by the price per acre, and that Pearson misrepresented the number of acres. Defendant's right to abatement materially and mainly depends on the interpretation of the contract, as shown by the bond for title,whether the phrase contained therein, stating the number of acres, is merely descriptive, or a distinct averment or stipulation as to the quantity. Contracts for the sale of land consist generally of two classes,-a sale of a specific tract, described by metes and bounds, and a sale of a specified quantity; a sale in gross, and a sale by the acre. When, in a conveyance, the land is described by certain and definite boundaries, in the absence of fraud or gross and palpable mistake, such description is ordinarily regarded as conclusive; and, when followed by a representation of quantity, such representation is considered as cumulative description. As to contracts of the first class, this rule has been placed beyond the pale of further discussion by the decisions of this court. It

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