#### COBB BROTHERS & CO. v. W. B. GUTHRIE.

(Filed 30 October, 1912.)

Wagering Contract — “Cotton Futures” — Pleadings—Allegations of Answer — Burden of Proof — Evidence.

In an action to recover moneys paid out, and commission, for tbe purebase of cotton by the plaintiffs to defendant’s use, where the defense is set up, by verified answer, that the transaction was a gambling contract in “cotton futures,” the burden is cast upon the plaintiffs to prove that the transaction was a lawful one, and that the parties intended actual delivery, not merely optional with either party (Revisal, secs. 1690, 1691), and the defendant’s letter in this case, being the only evidence, promising payment and asking for indulgence, is insufficient.

*314Appeal by plaintiffs from Whedbee, J., at July Special Term, 1912, of DURHAM.

Civil action to recover $280. From a judgment for defendant, tbe plaintiffs appeal.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

Johnson & Johnson for plaintiffs.

J. Lathrop Morehead for defendant.

BrowN, J.

This action is brought to recover $280 alleged in tbe complaint to be due the plaintiffs by defendant. Tbe character of tbe transaction is stated in tbe complaint as follows: “That tbe consideration of tbe said account stated was tbe sum of $280 paid out and expended, including plaintiffs’ commissions, by plaintiffs for tbe use and benefit of defendant and at bis special instance and request, in and about tbe purchase and sale of 200 bales of cotton.”

Tbe defendant pleaded as a defense to tbe action chapter 39 of tbe Revisal of North Carolina 1905, entitled “Gaming Contracts,” and tbe amendments thereto, and especially section 1689 of said Revisal of North Carolina. Tbe answer was duly verified by defendant.

Plaintiffs introduced in evidence (which was all of tbe evidence) tbe following letter from tbe defendant:

> Durham N. C., December 10, 1910.

> Cobb Bros. & Co.,

> Norfolk, 7a.

> Dear Sir :: — I am in receipt of yours of tbe 8th instant, showing debit of $280. I will send you a remittance at tbe very earliest possible moment ; so be a little patient with me, please.

> (Signed) W. B. Guthrie.

Tbe defendant having pleaded in a verified answer that tbe transaction was a gambling contract in “cotton futures,” tbe burden was cast upon tbe plaintiffs to prove that tbe transaction was a lawful one, that actual delivery of tbe cotton was intended *315by tbe parties, and not merely tbat it was optional upon either party to call for actual delivery. Eevisal, secs. 1690, 1691.

The only evidence offered, viz., the letter of the defendant, fails to meet the requirements of the law. Burns v. Tomlinson, 147 N. C., 647; Garseed v. Sternberger, 135 N. C., 502; Burrus v. Witcover, 158 N. C., 384. The judgment of the Superior Court is

Affirmed.