Maxey v. Railey & Bros. Banking Co.

Decision Date06 February 1933
Docket Number17532
PartiesMAXEY v. RAILEY & BROS. BANKING CO. et al.
CourtKansas Court of Appeals

Rehearing Denied March 6, 1933.

Appeal from Circuit Court, Jackson County; Ralph S. Latshaw, Judge.

Suit by L. E. Maxey against Railey & Brothers Banking Company, O G. Watson, J. W. Morgan, and others, subsequently dismissed except as to defendants named. Judgment for defendants, and plaintiff appeals.

Affirmed.

Wm Bush, of Kansas City, for appellant.

Harris & Koontz, of Kansas City, for respondents.

OPINION

BLAND Judge.

This is a suit by plaintiff upon a draft in the sum of $2,500.00 issued by Railey & Bros. Banking Company, payable to the order of defendant, O. G. Watson, and drawn on the First National Bank of Kansas City. Plaintiff is an assignee of the draft. The suit was originally brought against Railey & Bros. Banking Company, the maker of the draft, and O. G. Watson, the payee, J. W. Morgan, Fred Phillips and M. Stanley, whose names are endorsed upon the back of the draft; but at the opening of the trial of the case the suit was dismissed as to Phillips and Stanley and the trial proceeded against the other defendants. The case was tried before the court without the aid of a jury, resulting in a judgment in favor of defendants. Plaintiff has appealed.

There was no finding of fact or declaration of law requested of or given by the court and, under such circumstances, if there is any theory upon which the judgment may be affirmed it is our duty to sustain it. St. Louis-San Francisco Ry. Co. v. Dillard, 328 Mo. 1154, 43 S.W.2d 1034.

According to the testimony of the defendant, Watson, the payee in the draft, his wife owned farms in the vicinity of Leavenworth, Kansas and Weston, Missouri; that in the month of December, 1929, and shortly before the draft in question was executed, one, Crutcher with whom the witness had formerly worked in the insurance business in this state, but who was then a resident of Oklahoma, called to see the witness who was at that time living in Leavenworth, Kansas. The witness was then in the business of farming. Crutcher represented that the parents of one Bobby Phillips, who were friends of his in Oklahoma, had recently died leaving the boy a quarter of a million dollars in cash deposited in a bank in Tulsa and a royalty income from an oil lease of $60,000.00. From what Crutcher told the witness it would appear that the former was the financial advisor of the boy who was more or less under his influence. Crutcher said that he wanted Phillips to buy Mrs. Watson’s farm located near Leavenworth, Kansas. Crutcher came to see the witness several times about it and finally brought Phillips.

The witness did not testify directly to any scheme to sell the land to Phillips in excess of its real value but it may be fairly inferred from the testimony that that was Crutcher’s plan. The sale was finally agreed upon and Phillips and the witness each agreed to place $4,000.00 in cash in a Leavenworth bank to guarantee the fulfillment by each of his contract. If the witness failed to make title to the land he was to forfeit his $4,000.00 to Phillips. The witness was to obtain his $4,000.00 from the Railey & Bros. Banking Company at Weston, but in the meantime the witness and Crutcher entered into a scheme to defraud Phillips of his money in a poker game, Crutcher representing that Phillips had upon his person the sum of $25,000.00 which he had just received back from a deposit upon a contract to buy an apartment in Topeka, Kansas. The witness and Phillips were to do the playing and Crutcher was to stand behind Phillips and signal to the witness as to the value of the cards held by Phillips. This scheme was carried out with Crutcher furnishing the money with which the witness played. The witness testified that his "winnings" were to go to Crutcher and he was to get nothing. The witness continued to consistently win. Finally Phillips wanted to raise the bet to $4,000.00 more than the witness had in his possession. The witness had already made arrangements by telephone to get such an amount from the bank at Weston. So the witness and Crutcher went to Weston and the former received from Railey & Bros. Banking Company there the sum of $1,500.00 in cash and the draft in suit for $2,500.00. The defendant, Morgan, was cashier of the bank and endorsed the draft for "identification" purposes, at the request of Crutcher. The two returned to Leavenworth, Kansas, where the game was resumed. The witness got a headache and Crutcher gave him a tablet in water to drink and after that the witness knew nothing. The game was resumed and the witness lost his money, together with the draft in question, to Phillips. The witness either had been drinking, or had been drugged by the tablet given him in the glass of water by Crutcher to allay a headache.

Crutcher told the witness that if he would come to Kansas City, "I will get this money" that Phillips had won. They came to Kansas City and went to a room in a hotel in that city, where the witness was kept for three or four days during which time he was given whiskey and sleeping medicine. His son and some detectives finally found him there. It is defendants’ theory that Watson was kept there so that he could not interfere with the cashing of the draft.

Plaintiff testified that he purchased the draft about the 18th or the 19th of December from Phillips at another hotel in Kansas City. The draft is dated December 18th. He admitted that he is a gambler and had been convicted in the federal court on a narcotic charge. He said that he had known Phillips for four or five years and that he had met him in Kansas City four or five times during that time; that Phillips lived in Ellsworth, Kansas, but had left there at the time this suit was brought and he did not know where he was; that he had transacted business with Phillips two or three times, trading "around *** on diamonds"; that he gave Phillips $350.00 in cash and $2,150.00 in diamonds for the draft in question; that he did not know Watson or anything about him; that a man by the name of Stanley was in company with Phillips and that Stanley recommended that the draft was all right; that Stanley, at the request of the witness, endorsed the draft. What Stanley had to do with the transaction and why plaintiff asked him to endorse the draft is not explained in the testimony.

The witness immediately deposited the draft in his bank for collection, but payment upon the draft had been stopped and it came back to the witness. He then turned it over to a man by the name of Yoakum. The witness turned the draft over to Yoakum because the witness owed the latter a sum of money, but it appears from the later testimony of the witness that Yoakum owed him instead of the reverse. Yoakum "carried it (the draft) quite awhile, *** and he said he did not want to sue on it to get it, so I straightened up with him." The suit was brought in the name of Yoakum but in the trial the name of the present plaintiff, Maxey, was substituted for that of Yoakum. Plaintiff first denied that Yoakum is a gambler but later testified to a state of facts tending strongly to show that he is such.

The law of Kansas was neither pleaded nor proven. The case hinges upon the validity of the transference of the draft at Leavenworth, Kansas, and it is the theory of the plaintiff that its validity is to be governed by the law of Kansas where the transfer was made; that there being no pleading or proof of the law of that state the presumption is that the common law is in force there, and that under the common law a gambling contract of this nature is enforcible, citing in support of this contention the cases of Waddle v. Loper, 1 Mo. 635. See v. Runzi, 105 Mo.App. 435, 438, 79 S.W. 992, and 14 Am. & Eng. Encyclopedia of Law (2d Ed.) pp. 586 to 590. In support of plaintiff’s contention that the validity of the transfer of the draft from Watson to Phillips is to be governed by the laws of the state of Kansas, where the transfer took place, plaintiff cites, among other authorities, Phillips v. Green, 194 Ky. 254, 238 S.W. 742, and Sunflower St. Bank v. Bowman (Mo. App.) 243 S.W. 403. In support of his theory that the presumption is that the common law is in force in Kansas plaintiff cites Rositzky v. Rositzky (Mo. Sup.) 46 S.W.2d 591.

Assuming plaintiff’s theory of the law is correct, we do not think he is entitled to recover. While the general rule is that the validity of a contract is determined by the law of the state or country in which the contract was entered into, such contracts are enforced in another state or country only on the ground of comity and the court will not give countenance to them if they offend the fixed public policy of the state where the action is brought. 13 C. J. pp. 253-255, inclusive. In other words, under such circumstances the contract or transaction must be valid both in the foreign state and state of the forum.

"The prevailing tendency seems to be to regard statutes declaring gambling contracts and transactions illegal or void as embodying a distinctive public policy, which requires the courts of the state or country in which they are enacted to refuse to recognize or enforce any contract or transaction in violation of their terms, even though such contract or transaction arose in another state, by the laws of which it is valid." 5 R. C. L. p. 960.

See, also, 27 C. J. p. 1073. We have such statutes in this state.

Section 4303, R. S. 1929 (Mo. St. Ann. § 4303), provides in part as follows:

"If any person shall play at any game whatsoever for money, property or gain, with cards, dice, or any other device which may be adapted to or used in playing any game of chance, or in which chance is a material
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