Appleton v. Maxwell.

• Decision Date: 26 February 1901
• Citation: 65 P. 158,10 N.M. 748
• Parties: APPLETONv.MAXWELL.
• Court: New Mexico Supreme Court

10 N.M. 748

65 P. 158

APPLETON

v.MAXWELL.

Supreme Court of the Territory of New Mexico.

Feb. 26, 1901.

Syllabus by the Court.

Where money is loaned or advanced with the understanding between the parties that it shall be used in gambling, or where the party advancing the money participates and shares in the gambling transaction thus promoted by his act, such party becomes particeps criminis, and cannot recover in a suit for the money loaned or advanced under such circumstances.

Appeal from district court, Bernalillo county; before Justice J. W. Crumpacker.

Action by Robert Appleton against W. A. Maxwell. Judgment for plaintiff. Defendant appeals. Reversed.

Where money is loaned or advanced with the understanding between the parties, that it shall be used in gambling, or where the party advancing the money, participates and shares in the gambling transaction thus promoted by his act, such party becomes particeps criminis, and can not recover in a suit for the money loaned or advanced under such circumstances.

Johnston & Finical, for appellant.

Horton Moore, for appellee.

McFIE, J.

Appellee brought suit in the court below for the sum of $105, and interest at 6 per centum, alleged to be due thereon. Jury being waived, trial was had before the court, May 25, 1900, and judgment was rendered for the plaintiff for the sum of $105 and costs. From this judgment an appeal was taken to this court by the defendant. The complaint is in the usual form, and alleges money loaned to the defendant, and the answer is general issue. The court below made no findings of fact, so far as the record discloses, but the judgment recites that the court found the issues for the plaintiff. The facts disclosed by the record wholly fail to sustain the judgment of the court below in this case. The plaintiff below, appellee in this case, seeks to recover from the defendant $105 and interest, upon the ground that he loaned the defendant that amount to pay an existing indebtedness to other parties, and while, upon direct examination, he testified to this effect, upon cross-examination he admits that this was the amount found due him upon a settlement at the close of a night's gambling at cards, in which plaintiff, defendant, and two others participated. He also admits that the money advanced by him was used in the game, thus destroying his claim that the money was used to pay a pre-existing indebtedness to third parties. These are admissions against interest, which bind the appellee, so that his own testimony destroys his claim that the transaction was a loan, and sustains the defense that it was a gambling transaction, in violation of the statute, and for which there could be no recovery. There were only two additional witnesses who testified in the cause, both of which testified that the money was used in the game, and the money sued for was the amount found due on settlement, at the end of the game. The defendant denied that he borrowed the money, but admits that when he and the plaintiff settled at the end of the game the amount sued for was the balance due the plaintiff. Upon these facts, it is idle to call the transaction a loan, in a legal sense. It was nothing more nor less than a gambling transaction, in violation of the statute, and any implied contract or obligation to pay was not a legal obligation, enforceable in the courts of this territory. To call this matter a loan is clearly a device to avoid the provisions of the statute concerning gambling, and the law will not tolerate subterfuges for this purpose. As was said in 14 Am. & Eng. Enc. Law (2d Ed.) p. 642: “This loaning must not be a device of one of the parties to the contract to enable the winner to sue the loser for his own losses, for the law pierces disguises of this sort, and will not allow the winner to recover from the loser by subterfuge.”

The first assignment of error is: “The court erred in holding that a gambling contract could be enforced at law.” The second is: “The court erred in rendering judgment in favor of the plaintiff, Appleton, and against the defendant, Maxwell.” As to the law of this case, there is little, if any, controversy between counsel for appellant and appellee. At common law certain wagering contracts were held valid, and the early English precedents sustained such contracts, with few exceptions. Some of the American courts followed the early English precedents, but, while these early English precedents were in many instances followed, regret was expressed on the part of some of the judges that they felt constrained, out of respect for precedent, to sustain such a doctrine. After the enactments of the statutes of Car. II. and 9 Anne, the doctrine announced by the English courts based upon these statutes was entirely different from that announced in the early cases, and gaming, gambling, and wagering contracts were held void by these courts. Owing to the regret expressed by different courts that they felt constrained to sustain the doctrine of the early English decisions in deference to precedent, many years ago, and prior to the enactment of statutes by the different states, the courts began to repudiate the doctrine of the common law as to gambling and wagering contracts; and upon examination it will be found that the New England states, Pennsylvania, South Carolina, Massachusetts, Vermont, Minnesota, and other states, repudiated the common-law doctrine. In the case of Amory v. Gilman, 2 Mass. 6, the court said: “It would seem a disgraceful occupation for the courts of any country to sit in judgment between two gamblers, in order to determine which was the best calculator of chances, or which had the most cunning of the two.” A leading case, and one which gives the reason for the repudiation of the common-law rule more fully than the others, is the case of Wilkinson v. Tousley, 16 Minn. 299 (Gil. 263), 10 Am. Rep. 139, in which case the authorities are collated and examined, which states the case as follows: “From the foregoing citations from the statutes which of late years have been enacted in England against bets and wagers, as well as from the common knowledge of the prevailing public sentiment on this subject, we think the remark found in 2 Smith, Lead. Cas. (6th Am. Ed. 343), that ‘the moral sense of the present day regards all gaming or wagering contracts as inconsistent with the interests of the community, and at variance with the laws of morality’ is abundantly satisfied. *** In determining, then, what is the law upon this subject here, we are free to lay down such rules as are most in accordance with general principles, and with the best-considered and most wholesome views which have been expressed by other tribunals. *** In announcing a rule where none has been before announced, the question is whether we shall blindly adopt a doctrine which is admitted to have been originally wrong, both in morals and in law, and from which the courts of England would gladly escape were they not hampered by precedents, or whether we shall give full scope to the broad principle that contracts contrary to good morals and sound public policy are invalid, and that, therefore, wagers and contracts of that character are not to be sustained. We have no hesitance in adopting the latter course.” Numerous other cases might be cited to the same effect, but it is not deemed advisable to multiply them here. In 1876 this court was called upon to consider this subject in the case of Joseph v. Miller, 1 N. M. 621. This was a suit to collect a note, the consideration of which was a bet upon a horse race. The court, in an elaborate opinion by Associate Justice Bristol, sustained the lower court in holding that...