Laytham v. Agnew

• Decision Date: 31 October 1879
• Citation: 70 Mo. 48
• Parties: LAYTHAM, Appellant, v. AGNEW.
• Court: Missouri Supreme Court

70 Mo. 48

LAYTHAM, Appellant,

v.AGNEW.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Knox Circuit Court.--HON. JOHN C. ANDERSON, Judge.

AFFIRMED.

Suit under the gaming act to recover money won from the plaintiff at a game of “poker” in which he and the defondants, Agnew, Kelley, Werner and Philips were engaged.

Hollister & Hollister and W. R. McQuoid, for appellant.

Wilson & Cover for respondents.

HENRY, J.

The petition alleged that at a game of cards called “poker,” in which plaintiff and defendants played, the plaintiff lost and defendants won of him, at one sitting, $1,289, and that the defendants “conspired together to defraud the plaintiff and win his money.”

1. GAMING ACT: “poker:” nojoint liability of players for money lost.

Section 1, page 660, Wagner's Statutes, provides that: “Any person who shall loose money, or property at any game or gambling device, may recover the same by civil action.” The appellant insists that the defendants are jointly liable for the amount lost by him in the game, whether the conspiracy alleged existed or not; and instructions embodying that theory, asked by the plaintiff, were refused, while those declaring a contrary doctrine were given for defendants. If there had been any evidence of an agreement between the defendants to divide among themselves whatever might be won from the plaintiff in the game, they would have been jointly liable, although there may have been no conspiracy to cheat and defraud him. There was, however, no evidence to that effect, and the court properly confined the instructions to the case made by the evidence. In the game of “poker” each party plays for himself, as was established by the evidence; and if there be no conspiracy of two or more to cheat another playing in the game, and no agreement to divide between themselves any amount they should win from him, each party in the game is only liable to a loser for the amount of money he may win from him.

Bristow v. James, 7 Durn. & E. 257, was an action to recover money from the defendant lost by plaintiff at a game of cards. Defendant pleaded in abatement that “if the sum sued for be due and owing to the plaintiff, the same is jointly due and owing to him from the defendants, one G. R. and G. A. & C.,” and it was held on general demurrer to the plea that if the parties named in the plea were jointly liable with defendant, as therein alleged, they should have been joined as defendants, and, also, that under the statute (similar to ours) the action “was on a contract raised by the act.” The decision in that case does not sustain the appellant's position that the liability under our statute is a joint one. The statute makes all contracts joint and several which were joint only at common law; but does not make a contract joint which was not so at common law. While the action under the statute may be one ex contractu, it is not a consequence that every person playing in a game, whether he loses or wins, is liable with the winner to any one who may lose in the game, nor was it so decided in Bristow v. James. If so, one who had lost more in the game than the party complaining, and one who had not won a dollar of his money, would be liable for the whole amount that the complaining party lost, and the latter would also be hable to him for what he had lost, and each of them to others for what they may have lost, and thus, out of the same game innumerable cross-actions might originate. The statute is not...