Bodie v. Horn, 211 N.C. 397 (1937)

March 17, 1937 · Supreme Court of North Carolina

211 N.C. 397

MORGAN P. BODIE v. B. C. HORN.

(Filed 17 March, 1937.)

Contracts § 7d—

A contract for “cotton futures” in which no actual delivery is intended or contemplated is void and no action may be maintained thereon.

Appeal by plaintiff from Sink, J., at September Term, 1936, of RuTHEREOED.

Civil action to recover balance alleged to be due on certain “cotton contracts” purchased by plaintiff from defendant “on call” and “closed out” when plaintiff failed to “put up sufficient margin to protect said contracts.”

Demurrer interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action. Demurrer sustained. Plaintiff appeals.

B. T. J ones, Jr., for plaintiff, appellant.

T. J. Moss for defendant, appellee.

Pee Oubiam.

The basis of the judgment is that the transactions alleged in the complaint are denominated “futures,” no actual delivery of the articles sold being intended or contemplated, and therefore declared illegal by C. S., 2144. Orvis Bros. & Co. v. Holt-Morgan Mills, 173 N. C., 231, 91 S. E., 948. It is also observed that the complaint contains no allegation of a promise to pay on the part of the defendant, which, perhaps, the plaintiff assumed the law would imply. However, in all events, the judgment sustaining the demurrer would seem to be correct.

Affirmed.