Allgear v. Walsh
| Decision Date | 10 January 1887 |
| Citation | 24 Mo.App. 134 |
| Parties | MICHAEL S. ALLGEAR, Respondent, v. JAMES WALSH, Appellant. |
| Court | Kansas Court of Appeals |
APPEAL from Buchanan Circuit Court, HON. JOSEPH P. GRUBB, Judge.
Affirmed.
The case and facts are stated in the opinion.
WOODSON & WOODSON, for the appellant.
I. The object of the statute to prevent betting and gambling was the protection of the public morals, and the court should have instructed the jury, as asked by defendant, that plaintiff could not recover. Story v. Brennen, 15 N.Y. 524; Hayden v. Little, 35 Mo. 418; 12 Metcalf (Mass.) 327; 11 Cushing (Mass.) 358. The central idea of the act which is in aid of the statute defining and punishing gambling as a criminal offence, is to discourage and suppress gambling by the most effective of all methods, that of preventing the gambler from retaining the spoils of his nefarious vocation, and from successfully transferring it. Williams v. Wall, 60 Mo. 318; Kitchen v Greenabaum, 61 Mo. 110; Fisher v. Hildreth, 117 Mass. 562; Peck v. Briggs, 3 Denio (N. Y.) 107.
II. A statute cannot be evaded by estoppel Railroad v. Van Horn, 57 N.Y. 476.
III. An election wager is illegal and the winner cannot maintain an action for it against the stakeholder. Worthington v Black, 13 Indiana 344; Huedock v. Kilbourn, 6 Wis. 458; Hayden v. Little, 35 Mo. 418; Williams v. Wall, 60 Mo. 318; Kitchen v. Greenabaum, 61 Mo. 110. When a stakeholder's money or property is bet by another and lost the stakeholder may recover the same. Peck v. Briggs, 3 Denio (N. Y.) 107; Hardy v. Hunt, 11 Cal. 343. Nor does the doctrine of estoppel apply in such a case. 11 Cal. 343; Kitchen v. Greenabaum, 61 Mo. 110. It is immaterial that Flaisig made the bet of the barrel of whiskey in his own name. It belonged to defendant and he had the right to refuse to turn it over to plaintiff. Cato v. Hutson, 7 Mo. 75; Ruckman v. Pitcher, 29 N.Y. 9; David v. Orme, 36 Ala. 540.
IV. A creditor of any person who loses money on an election may recover the same from the winner. Sects. 5720, 5721, Rev. Stat.; Williams v. Wall, 60 Mo. 318; Reynolds v. McKinney, 4 Kan. 94. Defendant in this case was a creditor of Flaisig. The court, therefore, erred in not sustaining defendant's demurrer to the evidence, and in refusing defendant's instruction telling the jury to find for him.
JAMES W. BOYD, for the respondent.
I. Plaintiff does not sue defendant as stakeholder, but as a depository or bailee. The authorities cited, therefore, under that view are not relevant, and do not sustain the positions assumed in brief, if they were.
II. Instruction seven, given to the jury by the court, at the request of the defendant, presented the issues in the case fairly and correctly. Having at the trial committed himself to the theory presented by him, in said instruction, defendant cannot now claim that that theory is erroneous, or that the court erred in giving the instruction he himself asked. McGonigle v. Dougherty, 71 Mo. 259; Davis v. Brown, 67 Mo. 313; Crutchfield v. Railroad, 64 Mo. 255; Bank v. Armstrong, 62 Mo. 59. Defendant is bound by the theory of the law in the case presented at the trial by him, in said instruction asked by him (No. 7) and given by the court, even if said instruction were erroneous; but said instruction is correct. 67 Mo. 313; 64 Mo. 255; 71 Mo. 259. Instructions given for plaintiff on the same theory are correct. Defendant will not be heard to say that it is not the law. 71 Mo. 259, and other cases cited.
III. Exception to the action of the court in refusing a demurrer to plaintiff's evidence, was not made at the time. The record says defendant " " excepted," but does not say when he excepted. Case v. Fogg, 46 Mo. 44.
IV. Defendant's instruction number seven, as well as instruction number one of plaintiff, gave to the jury the law of the case. By their verdict the jury found that the defendant had received the whiskey from plaintiff as bailee, under an agreement to return it to plaintiff when demanded. The finding of the jury on the facts submitted to them by the defendant, in said instructions, is certainly binding on the defendant The jury found that Walsh held said whiskey as bailee of plaintiff; the evidence tended to show this; the finding of the jury is conclusive on this question of fact; hence, it is immaterial whether defendant endorsed Flaisig's note or not, or whether any part of said note remains unpaid.
V. It is not illegal to own a barrel of whiskey. Besides plaintiff is not here seeking to enforce any illegal contract. His contract with defendant, for defendant to hold whiskey for plaintiff, is certainly legal. The case in 61 Mo. 110 is not relevant.
VI. The case was properly submitted to the jury the verdict is just and right, and no error was committed by the trial court.
The plaintiff sued the defendant in trover for the conversion of a barrel of whiskey. The answer, after tendering the general issue, pleaded that prior to the general state election in 1884, the plaintiff made a bet with one Flaisig, to the effect, that plaintiff wagered one hundred dollars against one barrel of whiskey, the property of Flaisig, that Marmaduke would be elected governor of the state; that prior to this bet the said Flaisig, in order to induce defendant to go on a note with him as surety to the Saxton National Bank, of St. Joseph, for the sum of twenty-two hundred dollars, agreed to, and did, turn over to defendant thirty barrels of whiskey as collateral security; that he accordingly executed said note, which has not been paid off or satisfied; that at the time of the making of the said bet the plaintiff and Flaisig came to him, when plaintiff asked if he (defendant) had a barrel of whiskey belonging to Flaisig, to which he answered that he had, but without explaining to plaintiff how he held the same. The answer alleged that he held said barrel by reason of said pledge, and that the wager between the said parties was illegal, etc.
Plaintiff had judgment, from which defendant has appealed.
I. The appellant presents his case on the theory, first, that this action, in its essence, is to enforce a wagering contract, or to recover from a stakeholder property won on a bet on an election. It is manifest, from the instructions given and refused by the court, that it tried the case on the theory that plaintiff's cause of action was predicated on a transaction independent of the wagering contract, and which supervened after the performance by the parties.
The evidence, so far as we are able to gather it from the most fragmentary of abstracts furnished this court by the parties, shows that the wager between plaintiff and Flaisig required the plaintiff to put up his check for one hundred dollars against one barrel of whiskey owned by Flaisig, then in the possession of defendant as agent or bailee of Flaisig. The check and whiskey were to be placed in the hands of defendant as stakeholder. When the parties went to defendant to make the deposit, the plaintiff asked defendant if Flaisig had the barrel of whiskey with him, particularly described, as hereinafter stated, to which defendant answered that he had.
Thereupon the check and whiskey were left with defendant as stakeholder. After the election, it was agreed between the parties that plaintiff had won the bet, and the defendant was so advised by Flaisig and plaintiff. Thereupon defendant turned over to plaintiff the check so deposited with defendant. The plaintiff observed to defendant that, as to the barrel of whiskey, " he feared he had drawn an elephant, as he did not wish to take out a license, and did not think he could drink it up; and proposed to defendant to leave the same with him until such time as he should call for it." To which, according to plaintiff's testimony, the defendant answered, " all right," and according to defendant's testimony, he said " neither yes, nor no." His silence, however, was tantamount to assent.
Some months after this, when the plaintiff demanded of defendant the whiskey, he refused to deliver it, assigning as a reason that he held the same as collateral security. This was the first time he had mentioned the claim of the pledge.
This state of facts, about which there is no controversy, clearly made out a second bailment, wherein the plaintiff was bailor and the defendant was bailee. Having voluntarily accepted the property as that of the plaintiff, and agreeing to hold it for him, subject to his order, it became obligatory on his part to return the same to plaintiff upon demand, and his refusal amounted in law to an act of conversion. Fulkerson v. Ingles, 17 Mo.App. 232; Smith v. Stephens, 9 Mo. 873; O'Donohoe v. Corby, 22 Mo. 393; Williams v. Wall, 60 Mo. 318.
II. Under such a state of facts, the action is predicated upon the last contract of bailment, and the question of the legality, or illegality of the first arrangement between plaintiff and Flaisig has nothing to do with the controversy. In Armstrong v. Toler ( ), while the general rule was recognized, that the courts will not enforce contracts growing immediately out of, or connected with, an illegal act, yet it was held that if the promise on which the action is predicated be disconnected from the illegal act, and founded on a new undertaking, it is not affected by such act, though it was known to the promisee, who abetted the illegal act.
In recognition, no doubt, of this ruling, it has been held that the test whether a claim connected with an illegal transaction be enforceable at law is whether the plaintiff requires the aid of the forbidden transaction to establish his case. If he can fully develop his cause, without predicating it on the illegal matter, so that it is not in fact and law...
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