The holding in Faulk Co. v. Fenner Beane (Ala. Sup.)127 So. 673, 677,3 on rehearing, was that proof that the article or commodity agreed to be sold was not actually delivered at the time of making the agreement to sell and deliver, and that one of the parties to such agreement deposited or secured, or agreed to deposit or secure, what are commonly called margins, constituted prima facie evidence that the contract was a gambling transaction and void; "but, in order to give force and effect to the legislative recognition of the federal act as to the sales of cotton, the prima facie case made out under the first part of the section [section 6819] may be met and overcome by proof that the contract was made under the 'United States Cotton Futures Act.' "
Neither of these presumptions is a presumption of fact, but presumptions of law arising upon proof of facts, bringing the case within the rule of these statutes. This statement differentiates the holding here from that in Roman v. Lentz et al., 177 Ala. 64, 58 So. 438, where the plaintiff sought to overcome a prima facie case arising from a presumption of law, by undisputed proof of facts opposed to the presumption of law. In the case at bar the record presents a question of law for the court; in the cited case it was a question of fact for the jury.
Application overruled.
ANDERSON, C. J., and SAYRE, THOMAS, and BROWN, JJ., concur.
3 221 Ala. 96, 100.