Boon v. Gooch

• Decision Date: 03 April 1914
• Docket Number: 17,597,17,598
• Citation: Boon v. Gooch, 95 Neb. 678, 146 N.W. 930 (Neb. 1914)
• Parties: WALLACE M. BOON, APPELLANT, v. HERBERT E. GOOCH ET AL., APPELLEES. HENRY CAMPBELL, APPELLANT, v. HERBERT E. GOOCH ET AL., APPELLEES
• Court: Nebraska Supreme Court

146 N.W. 930

95 Neb. 678

WALLACE M. BOON, APPELLANT, v. HERBERT E. GOOCH ET AL., APPELLEES. HENRY CAMPBELL, APPELLANT, v. HERBERT E. GOOCH ET AL., APPELLEES

Nos. 17,597, 17,598

Supreme Court of Nebraska

April 3, 1914

APPEAL from the district court for Seward county: BENJAMIN F.GOOD JUDGE.Affirmed.

AFFIRMED.

J. J Thomas, for appellant.

Charles S. Roe, contra.

LETTONJ. BARNES, ROSE and SEDGWICK, JJ., not sitting.

OPINION

LETTON, J.

This was an action to recover money alleged to have been paid as margins in a bucket-shop.A general demurrer was filed to the petition, which was sustained by the trial court, and the action dismissed.Plaintiff appeals.The petition in substance sets forth that the defendants kept a bucket-shop for the pretended buying and selling of shares of stocks, bonds, and of certain commodities on margins.Its language follows that of section 226a, criminal code(1907), which was in force at the time the transaction occurred.By this section in substance it is made unlawful to carry on a bucket-shop, office, or store where the pretended buying or selling of shares of stocks or bonds of petroleum, grain, provisions, or other products, on margins or otherwise, is without any intention of receiving and paying for the property so bought, or of delivering the property so sold.The keeping of all such places is prohibited.Persons or corporations guilty of violating the section are upon conviction punishable by fine or imprisonment, or both.It is alleged that plaintiff paid the defendants certain sums of money at different dates as margins, which were merely wagers on the future price of commodities, and were so understood by both parties, and that defendants took and kept the same.

The plaintiff insists that the prohibitions and penalties of this act are all against the bucket-shop keeper.That it does not penalize the patron of the bucket-shop, nor make the transaction on his part unlawful; that consequently the parties are not in pari delicto, and under the rule of Becker v. Wilcox,81 Neb. 476, 116 N.W. 160, he may recover the money lost.He admits that, where parties are in pari delicto,the courts have usually refused relief to either, but insists that the rule is illogical and operates to the benefit of the guilty party by permitting him to retain the benefits of his wrong-doing, and thus rewards the party guilty of the greater moral turpitude.

The defendants take the position that the parties to the contract are in pari delicto; that such a contract is against public policy and public morals; and that no court will lend its aid to a cause of action which is based upon an immoral and illegal transaction of the nature pleaded by the plaintiff.

The question as to the nature of transactions of this kind first came before this court in Rudolf v. Winters,7 Neb. 125, which was an action to recover upon a due bill given for margins.It was said in the opinion: "The test in such cases is whether the party requires the aid of the illegal transaction to establish his claim; and, if he cannot proceed without showing that he has broken the law, the court cannot assist him, whatever may be his demand."Part of the syllabus is as follows: "A contract to operate in grain options to be adjusted according to the differences in the market value thereof, is a contract for a gambling transaction which the law will not tolerate.It is contra bonos mores, and against public policy.Whenever a claim is bottomed on an immoral or illegal transaction, no right whatever can be founded upon such contract which the law will sanction or the courts maintain."This doctrine has been strictly followed ever since.Sprague v. Warren,26 Neb. 326, 335, 41 N.W. 1113;Watte v. Wickersham,27 Neb. 457, 43 N.W. 259;Morrissey v. Broomal,37 Neb. 766, 784, 56 N.W. 383;Rogers & Bro. v. Marriott,59 Neb. 759, 82 N.W. 21;Mendel v. Boyd,91 N.W. 860, 3 Neb. Unoff.473.The rule is practically a part of the American common law.Note on p. 758, 1 Am. St. Rep., to Crawford v. Spencer, 92 Mo. 498, 4 S.W. 713.

It will be seen that this view has prevailed for more than 35 years and that the courts of this state have consistently refused to lend their aid to either party in such transactions.The enactment of the statute of 1907 imposing a penalty upon the bucket-shop keeper in nowise operated to change the nature of the...