Cantwell v. . Boykin , 127 N.C. 64 ( 1900 )

This is an action to recover money alleged to have been paid by plaintiff for and at the request of the defendant. The defendant alleges that he does not owe the plaintiff anything, and that the contract was illegal and void. At the trial the plaintiff testified that he was acting as commission broker for Silsby Co., and that he sent an order for the defendant for produce, of some future month, etc. At the close of the plaintiff's evidence, his Honor held that he could not recover. The plaintiff assigns as error the refusal of the Court to allow the issue to be answered by the jury. The defendant relied upon Laws 1889, c. 221, forbidding vicious contracts. The sole question is, was there sufficient evidence to submit the issue to the jury? After reading the evidence, we think there was, and that the refusal of the Court to do so was error. For instance, the plaintiff testified that "it was what is termed a `speculative contract.' " Did that mean legal speculation, or speculation forbidden by Laws 1899, c. 221? Again, "either party has a right to demand actual delivery. * * * I don't know, but presume that the forms were intended to avoid the statute. No one ever demanded specific delivery, but all customers had a right to demand the delivery of articles bought by them, at all times." What does this evidence mean with reference to a contract for future delivery? The error of the Court renders another trial proper.

Venire de novo. (68)