delivered the opinion of the court.
The transaction in question occurred prior to the passage of the act of 1882, “to prohibit the sale and purchase of futures,” etc., and a construction of that statute is not involved in the case. The defense made by appellant, that the amount claimed by appellees on open account grew out of and was paid by them on a gambling transaction, of which they were cognizant and in which they participated, is not sustained by the proof. It is not unlawful to buy or sell commodities to be delivered at a future day, even if at the time of the purchase the seller has none to deliver and no means of obtaining them, except to go into the market and buy them, if the parties really intend and agree that the goods are to be delivered and the price paid. Such a proceeding is a wager, and as such void, only when the real intent of the parties is to speculate in the rise and fall of prices and the goods are not to be delivered, but one party is to pay the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract. The character of such an operation is derived from the intention of the parties, and such party must concur in the vicious intent to bring the transaction under the denunciations of the law against gambling. If either contracts in good faith and contemplates a sale to be followed by the constituents of
delivery and payment, he is entitled to the benefit of the contract, no matter what may have been the secret intention or purpose of the other party. Benjamin on Sales, 4th ed., §§ 82, 83, and 542, and authorities there cited; Irwin v. Willair, 110 U. S. 499 ; Rountree v. Smith, 108 Ib. 269; Gregory v. Wendell, 40 Mich. 432; Gregory v. Wendell, 39 Ib. 337 ; Pixley v. Boynton, 79 Ill. 351.
We are unable to determine from the testimony what the intent of the parties was in reference to the delivery of the cotton bought and sold. The illegality of the dealing was alleged by appellant, and it is certainly no new doctrine in this State to say that it was incumbent on him to prove it, and to show everything necessary to make it so. The presumptions of law are in favor of, rather than against, the validity of contracts, and if a contract of doubtful im*431port is susceptible of two interpretations, the one legal and the other illegal, that construction must be adopted which renders it lawful. Wilkins v. Riley, 47 Miss. 306 ; Merrill v. Melchior, 30 Ib. 516.
Affirmed.