Perryman v. Wolffe

93 Ala. 290

• Court: Supreme Court of Alabama
• Decided: November 15, 1890
• Status: Published

Opinion

CLOPTON, J.

— We concur in the court’s finding of the facts. . The great preponderance of the evidence shows, that defendant sold plaintiff fifty shares of the capital stock of the South Anniston Land Company, in October, 1888, at eleven dollars per share, to be delivered at the expiration of twelve months from the making of the contract, with seller’s option to deliver at any time during that period. The principles governing such contracts are too well settled lo require discussion. When the parties agree at the time of making the contract, or the intent is, that no property shall pass, or any delivery be made, but to pay the difference between the price agreed on and the market price at some future day, whatever may be the form of the contract, it is a wager upon the fluctuations of the market, and comes within the denunciation of the statute pronouncing void all contracts founded, in whole or in part, on a gambling consideration. — Code, § 1742. On the other hand, ownership or possession of the property at the time of making the contract is not essential to the validity of a contract for delivery at some future day, and if the parties understand and intend that the seller shall deliver, and the buyers pay for the property, at the maturity of the contract, it is a legal and valid transaction, which the law will uphold; and that the seller may have the option to deliver at any time before the maturity of the contract makes no difference. — Hawley v. Bibb, 69 Ala. 52; Wall v. Schneider, 59 Wis. 352; 48 Amer. Rep. 520.

Courts will not presume that parties to contracts intended to violate the law; the intendment rather is in favor of their validity. By the terms of the contract, defendant agreed to deliver the stock, and plaintiff agreed to accept a delivery. The contract is prima facie valid, and the defendant, on whom rests the burden of proof, has failed to show any xmderstanding or intent that there should be no delivery.

There is no error in admitting- the evidence of the witness Smith. The statements as to the terms of the contract, to which he testified, were made in the presence and hearing of both plaintiff and defendant, a few minutes after the terms were agreed on, and before the persons present had dispersed. And even if there was error, the case having» been tried by the court without a jury, and the other evidence being sufficient to sustain the judgment, the error would not work a reversal.

Affirmed.