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Opinion of the Court.
dence merely. Wright v. Weeks, 25 N. Y., supra; Carter v. Shorter, 57 Alabama, 253; Carroll v. Powell, 48 Alabama, 298; Adams v. McMillan, 7 Porter, (Ala.,) 73. Both parties must be named in the written contract. An agent is entitled to his commissions only on due performance of all duties of his agency. These contracts being void and not enforceable in the courts of the State where made plaintiffs are not entitled to recover from defendants.
If Allen & Co. had made these sales for Bibb in legal form, and had then paid the losses for Bibb the law would have implied a promise on Bibb's part to pay Allen & Co. But the contracts were void under the statutes of frauds of New York. Allen & Co. were not legally bound to pay the losses, hence if they paid the money it was without actual request on part of Bibb, and without any implied promise on his part to repay them.
This declaration was against Bibb and Hopkins as partners, under the style of Bibb & Company; the verdict is against Bibb alone. It is conclusively established by the verdict that there was no such contract made by the partnership as alleged in the complaint, hence there is no cause of action which will serve to support the recovery adjudged. Walker v. Mobile Marine Dock and Ins. Co., 31 Alabama, 529, 531.
Mr. A. A. Wiley for defendants in error.
MR. JUSTICE JACKSON, after stating the case, delivered the opinion of the court.
The plaintiff in error has filed nineteen assignments of error, which may be grouped under five heads or propositions, viz. : (1) that the court erred in overruling the motion to suppress the deposition of the witness Richard H. Allen ; (2) that the court erred in admitting as evidence the statutes of New York, under which the New York Cotton Exchange was incorporated, and the rules and regulations of the Exchange, together with the parol testimony that the transactions in
Opinion of the Court.
question between the parties were conducted in accordance with those rules and regulations; (3) that the contracts for the sale of cotton for future delivery were gambling contracts within the meaning of the New York statute against wagers, bets, etc.; (4) that said contracts were invalid under the statute of frauds of the State of New York; and (5) that under the pleadings no judgment could be rendered against the defendant Bibb alone.
The questions thus presented may be properly considered in the order stated, under the facts disclosed by the bill of exceptions. The motion to suppress the deposition of the witness Richard H. Allen was based on the ground that no commission was issued out of the court, or by the clerk thereof, authorizing George H. Corey, as commissioner, to take the deposition ; and, secondly, that neither of the defendants or their attorneys received any notice of the time and place of taking the deposition, or of the residence of either the witness or the commissioner by whom the deposition was taken. These objections to the deposition are clearly not well taken, for several reasons: It is shown by the record that on April 7, 1888, a notice was issued and served on the defendants that plaintiffs would take the deposition of the witness Allen, whose place of business was stated in the notice to be 31 and 33 Broad Street, New York city; and that George H. Corey, whose place of business was 60 Wall Street, in that city, would be suggested as commissioner to take such deposition; and that a copy of the interrogatories to be propounded to the witness was attached to the notice. It further appears that at that time the defendant Bibb objected to a commission being issued to take the deposition on the interrogatories to be propounded by the plaintiffs, basing his objection on the ground that the notice did not give the residence of the witness and of the commissioner, and on the further ground that no sufficient affidavit for the taking of the deposition had been filed, which objections were manifestly insufficient, inasmuch as the place of business of both the witness and the commissioner was stated, and an affidavit was filed by the attorney for the plaintiffs which showed
Opinion of the Court.
proper ground for taking the deposition. Without invoking the action of the court upon these objections, the defendant Bibb filed cross-interrogatories to those propounded by the plaintiffs, and on April 18, 1888, a commission was regularly issued to said George H. Corey, as commissioner, to take the deposition on the interrogatories and cross-interrogatories filed, in accordance with the terms of the notice served upon the defendants. The record further shows that the deposition was actually taken in pursuance of the commission thus issued, and was in all respects regular and in proper legal form. The clerk of the court in issuing the commission addressed it, however, to George H. Carey, Esq., 60 Wall Street, New York city, instead of to George H. Corey, but that was purely a clerical mistake in making out the commission, and in no way misled the defendant or affected his rights. He had been notified of the place of taking the deposition, and been given the true name of the commissioner, and the slight variance in the commission which issued was not material, and furnished no valid ground for the suppression of the deposition. Keene v. Meade, 3 Pet. 1, 6.
6 But, aside from this, the motion to suppress the deposition came too late. As already said, the commission to take the deposition of said Allen was issued April 18, 1888. The deposition was taken before the proper commissioner on May 17, 1888, and, after transmission to the clerk of the court, was by him published, under a general order of the court, May 29, 1888. The May term of the court was then in session, and continued in session until July 8, 1888. The November term commenced on the first Monday of that month. During all that time the defendant Bibb made no objection to the deposition, and gave no notice that he would move to suppress it, but waited until January 10, 1889, the day set for the trial of the cause, when, after a motion for a continuance, then made, had been overruled, he, for the first time, moved to suppress the deposition. If the deposition was in any respect open to irregularities, the motion to suppress it, under the circumstances, came too late. Such motions should be made before the case is called for trial, so as to afford opportunity to retake
Opinion of the Court.
the testimony or correct defects in the taking of the deposition. Howard v. Stillwell & Bierce Mfg. Co., 139 U. S. 199, 205, and cases cited. The same rule of practice prevails in Alabama. De Vendal V. Malone, 25 Alabama, 272, 278; Birmingham Union Ry. Co. v. Alexander, 93 Alabama, 133. This assignment of error is, therefore, without merit.
The next assignment of error relied on is in the action of the court admitting in evidence the statutes of New York under which the New York Cotton Exchange was organized, together with the rules and regulations of that body under and in pursuance of which the transactions in question were conducted. This evidence was clearly competent and relevant, because the contracts entered into between Bibb & Company and the plaintiffs contemplated that the business which the plaintiffs would transact for their principals would be under, and in accordance with, the rules and regulations of the New York Cotton Exchange. It was proper, therefore, to show that this Cotton Exchange was a lawful body, organized for lawful business purposes, and had power to make such rules and regulations as might be deemed necessary and proper to carry out the purpose of its organization. It is clearly shown that B. S. Bibb & Company knew that the plaintiffs did business as cotton factors in that Exchange, and in accordance with those rules and regulations, and that, in acting as their agents in the sale of cotton for future delivery, they would transact the business through that Exchange, and in accordance with its rules and regulations. It was, therefore, germane to the issues in the case, and was both competent and relevant to prove that the contract between the parties had been carried out on the part of the plaintiffs in the mode and according to the methods contemplated by the parties. Peabody v. Speyers, 56 N. Y. 230, 236; Nickalls v. Merry, L. R. 7 H. L. 530, 542.
It is settled by the weight of authority that where a principal sends an order to a broker engaged in an established market or trade, for a deal in that trade, he confers authority upon the broker to deal according to any well-established usage in such market or trade, especially when such usage is known
Opinion of the Court.
to the principal, and is fair in itself, and does not change in any essential particular the contract between the principal and agent, or involves no departure from the instructions of the principal; provided, the transaction for which the broker is employed is legal in its character, and does not violate any rule of law, good morals, or public policy. We are of opinion, therefore, that the assignment of error based upon the admission of this testimony is not well taken.
Upon the third assignment of error, which presents the question whether the transactions in which the parties were engaged were illegal, because they were wagering contracts under the New York statute against wagers, bets, etc., the evidence in the case clearly fails to make out such a defence. In entering into their arrangement, it is shown by the correspondence and by other testimony in the case that there was no agreement or understanding between the plaintiffs and defendants that the cotton sold for future delivery was not in fact to be actually delivered. In their correspondence as to the terms on which the agency was to be undertaken the plaintiffs were distinctly informed that the defendants did a large business for the best and most reliable people of their locality; that they would hold themselves personally responsible for all orders sent, and hold their correspondents responsible for all orders executed as to margins; that they handled, sometimes, from 3000 to 5000 bales of cotton a day, and that their customers dealt in orders for from 500 to 1000 bales at a time, and were entirely responsible. It was also testified by both the plaintiffs and defendant Bibb that there was no understanding or agreement, either express or implied, between them at the time of entering upon the transactions or during their progress, that the cotton sold for account of the principals was not to be delivered at the time stipulated in the contracts of sale made for their account. It is not questioned that if the transactions in which the parties are engaged are illegal, the agent cannot recover either commissions for services rendered therein, or for advances and disbursements by him for his principal, (Story on Agency, SS 330, 344, and authorities cited,) the reason for this rule being that in such illegal trans