
    FURRH v. WESTERN UNION TELEGRAPH CO.
    (No. 543-4283.) 
    
    (Commission of Appeals of Texas, Section B.
    Nov. 4, 1925.)
    Gaming <&wkey;l! — Sale of cotton held not wagering contract.
    Where plaintiff sold and delivered cotton to purchaser, reserving right to take prevailing price at any time on any amount of cotton until certain date, held such contract was not a gambling 'contract, since purchaser had no chance to. win or lose on transaction; it being immaterial to him what figure cotton brought, inasmuch as plaintiff was obligated to return advance to purchaser in full amount, regardless of what figure cotton brought at sale.
    Certified Questions from Court of Civil Appeals of Sixth Supreme Judicial District.
    Action by John W. Furrh against the Western Union Telegraph Company. Judgment for defendant in trial court, affirmed by Civil Court of Appeals. Questions certified to Commission of Appeals.
    Questions answered.
    Cary M. Abney and Scott & Casey, all of Marshall, for plaintiff.
    Hall, Brown & Hall, of Marshall, and Young, Stincheomb & "Strickland, of Long-view, for defendant.
    
      
      Rehearing denied December 10, 1925.
    
   POWELL, P. J.

This case is before the Supreme Court upon the following certificate from the honorable Court of Civil Appeals of the Sixth District:

“In November, 1920, John W. Furrh, the plaintiff in the above-entitled suit, who resided in Marshall, sold and delivered 1,000 bales of cotton to Dorrance & Co., buyers, in business in Houston. At the times he shipped the cotton Furrh drew drafts (which were paid) on Dor-rance & Co., for - sums representing the then market value of the cotton. It appeared, however, that that value was not absolutely, but only conditionally, the price Furrh was to receive for the cotton. Testifying as a witness with reference to this, he said:
“ T reserved the right to fix the price. By “fixing” the price I mean you can “fix” the price or the “call price” at any time you s$e fit up until the agreed time. The agreed price in this case was up to and including the 25th day of January, 1921. At the time I sold them this 1,000 bales of cotton and shipped them the cotton, the price agreed on was what is known as “pass” price January New York, and by that term is meant the price for the month called at any time you cared to; it meant the price I was to receive. In other words, I sold them a thousand bales of cotton, and shipped it. At any time from the time I sold the cotton until the 25th day of January I had the right to fix the price on the whole or any part as I saw fit. They, Dorrance & Co., were to take the cotton at the price, middling basis, at the time I told them to-fix the price. * * * If the market was higher after that (the time when he sold and shipped the cotton to Dorrance & Company), and I saw fit to call between then and January 25th, I could do so, and they would have to pay me the difference; and up to that time, if I decided to call or became uneasy, and the price was lower than what they had paid me, in that event I would have to pay them the difference between what they paid me and the market of that date.’
“January 17, 1921, Furrh delivered to the Western Union Telegraph Company, the defendant in said suit, in Marshall, for transmission to Dorrance & Co., in Houston, a message as follows': ,
“‘January 17, 1921.
“ ‘Dorrance & Co., Houston, Texas. Fix price 100 bales to-day. John.W. Furrh,’
“The message was never delivered to Dor-rance & Co. With reference to it and the contract between Dorrance & Co. and Furrh, the witness Van Liew, a member of the Dorrance & Co. firm, testified:
“ ‘By the term “fixing price 100 bales to-day” the following is meapt: On November 4, 1920, we purchased from Mr. Furrh 1,000 bales of cotton at pass price of January contract on the New York market, basis middling, landed Houston, subject to Houston class and weight, Mr. Furrh’s option of fixing the price. At any time Mr. Furrh wishes to fix the price on any 100 bales lots out of the 1,000 bales, he designates the quantity and notifies us. On his instructions we sell a corresponding number of bales on the New York Cotton Exchange, and the market price of January contracts at the time our order is executed is the price Mr. Furrh gets for his cotton. For example, if Mr. Furrh instructs us to fix 100 bales at the market price, we sell in New York IpO January contracts at 16.75 cents. Mr. Furrh’s price would be 16.75 cents; in other words, he gets for his cotton the Janu-. ary quotation.’
“Van Liew testified further:
“ ‘Mr. Furrh drew a sight draft on Dorrance & Co. at the time he shipped the cotton. This draft was for an approximate amount, and did not cover the actual price of the cotton as contract price agreed upon. In the event the market declined, Mr. Furrh would deposit sufficient money with us to make up the deficit. This is what is called “margin” in the cotton business. The contract between Mr. Furrh and Dorrance "& Co. was made November 4, 1920, and the cotton was bought at pass price January, New York, with Mr. Furrh having the option of fixing the prices. The “pass” price of any contract month in the New York market means the price of that month at the time the seller fixes his price on the cotton sold us. On the 1,000 bales Mr. Eurrh sold us he had until January-25, 1921, to fix his price. * * * The 1,000 bales of cotton Mr. Eurrh sold us were not shipped as “consigned” cotton. All of this cotton was shipped against an actual sale and on different dates, and sight drafts were drawn upon us with bills of lading attached, and these drafts were made for approximate amounts against each shipment, being the market value of the cotton on the day it was shipped. The bills of lading were drawn as the cotton was consigned and the-drafts were paid. Mr. Eurrh was obligated to reimburse our firm in an amount equal to the difference between the amount already advanced and the decreased price.’*
“Said suit was to recover $530, the difference, Eurrh alleged, between the price he would have received for the 100 bales of cotton had the message been promptly transmitted and delivered on January 17, 1921, and the price he was able thereafter to get for same. The case was tried to the court without a jury. He found that the telegraph company was negligent, as charged against it, in failing to transmit and deliver the message, but nevertheless was not liable to Eurrh for damages he thereby suffered, because the contract between him and Dorrance & Oo. was a wagering contract, unenforceable in law. On the appeal to this court the holding of the trial court that the contract was a wagering contract was attacked as erroneous, and Eurrh insisted that the judgment therefore should be reversed. The members of this court disagreed as to whether the contention should be sustained or not. Associate Justice Hodges thought it should be sustained. The other members of the court thought the contention should not be sustained, and the judgment was affirmed accordingly.
“The cause is still pending before uá on a motion for a rehearing and to certify the, question about which members of this court disagree to you for decision. In compliance with said motion, so far as it is to certify, and as required by article 1620 of the Revised Statutes as amended by the Act of February 23, 1923 (General Laws, p. 72), this court respectfully certifies to you for decision a question as follows:
“Did this court err in holding on the facts stated that the contract in question between Eurrh and Dorrance & Go. was a wagering contract, unenforceable in law? ”

We think this case is clearly ruled by the opinion of Section B of the Commission of Appeals in the case of Smith v. Duncan, 209 S. W. 140, and: that of Section A of the same court in the ease of Seay & Co. v. Moore, 261 S. W. 1013. In all substantial respects the facts in the cases just cited are identical with the facts we have in the case at bar. No opinions by the Supreme Court or Commission of Appeals to the contrary are cited by counsel for the telegraph company.

In the Duncan and Moo-re Cases, supra, the Commission held that the contracts involved were not wagering ones. The correctness of this holding was essential to the judgment recommended by the Commission in each case. The Supreme Court adopted the judgment recommended by the Commission.

A gambling contract is thus defined by 20 Cyc. p. 921:

“A wager is a contract by which two or more parties agree that a certain sum of money or other thing of value shall be paid or delivered to one of them upon the happening of an uncertain event; it implies that each of the parties shall jeopardize something and have a chance to gain something or to recover the stakes or thing bet or wagered upon the determining of the contingent or uncertain event in his favor, and hence is a form of gambling."

In speaking of the contract in the Duncan Case, Presiding Judge Montgomery said:

“We think the contract is not subject to this objection. Similar contracts are frequently made by- persons engaged in the cotton trade, and no doubt by dealers in other commodities. In this case the cotton was sold and actually delivered with an agreement that the price to be paid should be determined by the state of the market on a day to be selected by the seller in the future. Duncan owned the cotton, but did not wish to take the then market price. Smith wished to buy the cotton, and was willing to take it and pay the value of the cotton at a future day to be selected by Duncan. It has been decided in this state that the owner of property has the right to sell the same and contract for the future delivery thereof, provided an actual delivery is contemplated, and that the price may be left' to be determined by the state of the' market at the time of delivery. Cleveland v. Heidenheimer (Tex. Civ. App.) 44 S. W. 554; Id., 92 Tex. 108, 46 S. W. 30.
“We can see no good reason why, having sold the cotton under an agreement that the future market value should determine the price, Duncan could not deliver it in advance of the time fixed for the determination of the price. We have been cited to no case-condemning a transaction of this character, and, after some search, have been unable to find a single case supporting the view of the plaintiff in error. The cases cited by the plaintiff in error are clearly distinguishable from this>case.”

In the Moore Case, referring to the definition we have just quoted, Judge Chapman said:

“If, under this definition, there was not an opportunity for each party to gain something -and an opportunity for each party, to lose something, the facts do not constitute a gambling contract.”

The Seay v. Moore Case, 228 S. W. 610, was also by the Court of Civil Appeals at Texar-kana. In that case Justice Hodges dissented, and the Commission of Appeals agreed with him. In the case at bar Justice Hodges again dissents, and says the case is like the Moore Case and ruled by the decision of the Commission of Appeals therein. We think it is.

In each case there was a sale on consignment. All the facts surrounding a transaction must be- considered in determining the intent ■of the parties. Weighing all the facts stated in the certificate, it appears conclusively that this was a sale on consignment. Witnesses use words more or less carelessly at times, and laymen rarely ever think of the legal effect of words when using them. But, reading the certificate as a whole, it is clearly shown that this was a sale on consignment just as was true in the Moore Case. The cotton was delivered to Dorrance for future sale.

In the case at bar Dorrance & Co. had no chance to win or lose on the final sale of the cotton. Furrh was to get the market value for his cotton whenever it was sold. This was to be true without any reference to the advancement which had been made him when the cotton was shipped. Of course, Furrh was risking the market. It might have been better for him to finally sell his cotton when he shipped it. But, before the contract could be a gambling one, the other party must also have accepted a chance to win or lose, depending upon the happening of an event. We are of the view that it was entirely immaterial to Dorrance as to what the cotton brought. If it brought more than the company had advanced Furrh, then Furrh got the increase. If it brought less', Furrh alone suffered the decline in price, and was required to pay to Dorrance the difference between what the cotton brought and what had been advanced to him. In other words, Dorrance had a binding obligation against Furrh for a return of the full amount advanced him, nothing more nor less, regardless of what the cotton might bring on final sale. It seems entirely clear to us that this is not a wagering contract.

In the Smith Case the buyer advanced less than the cotton was worth, and protected himself in that way against a-possible future decline in the price of cotton. In the Moore Case the buyer required a guaranty against future decline in price. In the instant case Dorrance required the putting up of a cash margin if 'the price declined. We think the character of security required in any given instance is of little moment. If Dorrance was satisfied with the solvency of Furrh, he was entitled to make the advance on this cotton as he did. The material test is that Dorrance could, under this contract, have recovered in a court the full amount of his advances to Furrh, regardless of the price the cotton might bring upon its final sale whenever that should take place.

We have an instance of what the Supreme Court of Iowa thought to be a gambling contract in the case of First National Bank v. Carroll, 80 Iowa, 11, 45 N. W. 304, 8 L. R. A. 275. In that case Cusick Bros, were to ship five cars of cattle to Carroll at Chicago. It was agreed in advance that Cusick was to get 4 cents per pound upon their sale, regardless of what the market value might be when the cattle were actually sold in Chicago. In this situation, if the cattle brought more than 4 cents per pound, Carroll would win and Cu-sick would lose. On the other hand if the price should be less than 4 cents per pound, Carroll would lose and Cusick would win. It was a gamble by both panties on the future market value of cattle, and under the circumstances, it gave to each party a chance to win or lose. Not so in the instant case. The seller of the cotton alone stood a chance to win or lose by postponing the final sale of his product. Dorrance could have no other interest in the future price of this cotton than his security for the money he had advanced thereon. He deemed this security sufficient either in the margining required under the contract or his right to recover upon a plain suit for debt.

We have referred to the Iowa case, not for the purpose of passing upon its correctness, but as an illustration of elements which must, in any event, be present in a wagering contract.

In the Moore Case, as Judge Chapman said, the buyer advanced to the seller the full value of the cotton at the time of shipment. That same course was pursued in. the instant case.

We think the certified question should be answered in the affirmative, and we so recommend.

CURETON, C. J.

The opinion of the Commission of Appeals answering certified questions is adopted, and ordered certified to the Court of Civil Appeals. 
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