I fear we are invading the exclusive province of the Court of Appeals to find the facts and the inferences of fact from the record before them and not before us.
Granting that such a contract may be in the nature of insurance upon an ungathered crop, insurance against seasonal hazards, such consideration is not expressed on the face of this paper. The real consideration may always be inquired into as a question of fact.
Under the finding of the Court of Appeals it was no more than a wager as to the size or quantum of a cotton crop. The case thus found is the same as if an argument touching the weight of a bale of cotton resulted in a contract by which one party guaranteed to the owner a weight of five hundred pounds, in consideration that the owner give him the value of the overweight, if any.
Clearly this is nothing but a wager, the stake of the one being the value of the underweight, and of the other the value of the overweight, as the one or the other should prove the better guesser.
Our private notion that he who enters into a contract should live up to it is beside the mark. The law regards such transactions, bottomed on the lure of getting something for nothing, as fraught with such evils that, as matter of public policy, it is no lawful contract, and is unenforceable.
Hence, I am impelled to dissent. *Page 253