S. M. Weld & Co. v. Austin

Citations

• 107 Miss. 279
• 65 So. 217

Syllabus

<p>1. Gaming. Gambling contracts. Dealing in futures. Recovery of payments. Pleading. Necessity of pleading set-off. Code 1906, section 2303.</p> <p>Under Code section 2303, so providing, contracts for the purchase or sale of commodities for future delivery, the parties not intending an actual delivery, or contracts of the kind commonly called “futures” are not enforceable, and when plaintiff represents defendant in buying and selling cotton for future delivery, and extended him a credit margin and some of the transactions were closed at a profit and others at a loss, payments being made of the differences in price arising out of the rise and fall of the market price above or below the contract price and the facts showed that no actual delivery of the cotton was contemplated, and that the contract was of the kind commonly called “futures” such a contract is condemned by the statute and will not be enforced in the courts.</p> <p>2. Gaming. Gambling contracts. Recovery of payments.</p> <p>Under Code 1906, providing that any person making any contract of the kind commonly called “futures” and who by reason thereof shall lose any money and pay or deliver it, may recover such money from the person “knowingly” receiving it, the knowledge of a cotton broker’s agent through whom negotiation and dealings in future were had, was the knowledge of the broker.</p> <p>3. Pleading. Set-off. Necessity of pleading.</p> <p>Where in a suit on a contract, defendant plead that the contract was one of the kind commonly called “futures,” and claimed a set-off for money paid thereunder, and the replication simply denied the indebtedness, and made no reference or claim to money paid under the contract by plaintiff to defendant and plaintiff filed no pleading in the nature of a set-off or counterclaim, the amount paid under the contract by plaintiff to defendant could not be credited on the amount of defendant’s count-terclaim.</p>