Cutshall v. McGowan

• Decision Date: 06 April 1903
• Citation: 73 S.W. 933,98 Mo. App. 702
• Court: Missouri Court of Appeals
• Parties: CUTSHALL v. McGOWAN.<SMALL><SUP>*</SUP></SMALL>

73 S.W. 933

98 Mo. App. 702

CUTSHALL v. McGOWAN.^*

Court of Appeals at Kansas City, Missouri.

April 6, 1903.

GAMING—STAKEHOLDER'S LIABILITY—STATUTORY LIABILITY—COMMON-LAW LIABILITY— PETITION — SUFFICIENCY — RETRACTION OF WAGER—TIME WHEN MADE—APPEAL—PREJUDICIAL ERROR.

1. A petition in an action to recover money intrusted to a stakeholder to hold for a wager, which showed on its face that more than three months had elapsed from the time of depositing the money with such stakeholder, did not

state a cause of action under Rev. St. §§ 3431, 3432, rendering stakeholders liable for money placed in their hands for a wager, on demand made previous to the determination of the wager, provided such action be commenced within three months from its accrual.

2. A stakeholder is liable at common law for refusal to return money deposited with him for a wager on demand made by the depositor before the determination of the event on which the wager was made.

3. Where, in an action to recover money deposited with defendant as a wager on a horse race, plaintiff's own evidence showed that he did not signify his dissent to the bet until the race was so far run that he realized that his horse was beaten, such dissent was inopportune, and his right to recovery lost.

4. Where plaintiff, on his own showing, was not entitled to recover, rulings adverse to him in the admission of evidence, or in giving instructions, or in refusing to set aside the verdict were not prejudicial on the merits.

Appeal from Circuit Court, Harrison County; Paris C. Stepp, Judge.

Action by Thomas Cutshall against B. F. McGowan. From a judgment for defendant, plaintiff appeals. Affirmed.

Peery & Lyons, for appellant. J. C. Wilson, for respondent.

SMITH, P. J.

This action was commenced on April 3, 1901. The petition alleges, inter alia, that on November 23, 1900, the plaintiff made a bet with one Kendle on a horse race to be run, and, at the time of making the bet, plaintiff and said Kendle each deposited with the defendant $295, and that, by the terms of the bet, if plaintiff's horse won, then the entire amount so bet was to be paid to plaintiff, and, if Kendle's horse won, then the said entire amount was to be paid to him; that defendant received and held said stake, knowing the terms and conditions of said wager as aforesaid; that by the terms of said wager said money was not to be delivered to the winner thereof until said horse race was finished, and until the judges appointed for that purpose had given their decision as to which one of said horses had won said race, of all which the said defendant was fully advised; that after the commencement of said race, and before the same was completed, this plaintiff learned that the said horse race had been gotten up as a fraudulent scheme for the purpose of defrauding this plaintiff of his money and property, and that said Kendle and the defendant, McGowan, and others, had arranged said horse race in a fraudulent manner, so that plaintiff's horse would be certain to be beaten, and so that plaintiff should be defrauded out of his money and property wagered on said race; that thereupon, and before said race was terminated, and before said judges had announced their decision thereon, and previous to the expiration of the time agreed upon for the determination of said bet or wager, this plaintiff demanded of the defendant the said sum of $295 so deposited with said defendant as such stakeholder, and directed said defendant not to pay the same over to said Kendle or to any other person, but that said defendant refused to pay said money over to plaintiff, etc.

The first question suggesting itself is whether or not the petition states a cause of action under the statute (chapter 32, Rev. St.). Section 3424 of said chapter provides that any person who shall lose any money or property at any game or gambling device may recover the same by civil action, and, under it, it has been held that a horse race is a game. Swaggard v. Hancock, 25 Mo. App. 596; Shropshire v. Glascock, 4 Mo. 536, 31 Am. Dec. 189; Boynton v. Curle, Id. 600; Hayden v. Little, 35 Mo. 420. Section 3431 of said chapter further provides that every stakeholder who shall knowingly receive any money or property staked upon any betting declared gaming by the foregoing provisions shall be liable to the party who placed such money or property in his hands both before and after the determination of such bet, and the delivery of the money or property to the winner shall be no defense to any action brought by the losing party for the recovery thereof, provided that no stakeholder shall be liable afterwards unless a demand has been made of such stakeholder for the money or property in his possession previous to the expiration of the time agreed upon by the parties for the determination of the bet or wager. This section so limits the liability of the stakeholder that no action can be maintained against him if he delivers over the stakes to the winner after the determination of the bet, and before he has notice from the loser not to do so. Williams v. Wall, 60 Mo. 318....