Cothran v. Ellis

Citation16 N.E. 646,125 Ill. 496
PartiesCOTHRAN v. ELLIS et al.
Decision Date09 May 1888
CourtSupreme Court of Illinois

OPINION TEXT STARTS HERE

Error to appellate court, First district.

This was an action brought by J. Alder Ellis and Milton C. Lightner on a promissory note executed by defendant, George W. Cothran, to Smith, McCormick & Co., brokers upon the Chicago Board of Trade, and by them assigned to plaintiffs. The defense relied upon was that the consideration of the note was losses made by defendant in gambling upon the Board of Trade through said brokers. There was a verdict and judgment for plaintiffs in both superior and appellate courts, and defendant brings error.

Francis A. Riddle, for plaintiff in error.

Trumbull & Robbins and S. S. Gregory, for defendants in error.

MULKEY, J.

On the 23d day of June, 1885, the defendants in error, J. Alder Ellis and Milton C. Lightner, brought an action of assumpsit in the superior court of Cook county against George W. Cothran on the following instrument:

‘$10,000.

CHICAGO, January 24, 1882.

‘Ninety days after date I promise to pay to the order of Smith, McCormick & Co. ten thousand dollars, at their office, with interest from date until paid at 6. To value received.

GEO. W. COTHRAN.'

-which was indorsed in blank by the payees without recourse. To the declaration, which is in the usual form, the defendant interposed the plea of the general issue, which was subsequently withdrawn, and nine special pleas. A demurrer was sustained to the eighth, and issues of fact were joined on the others. The issues being thus made up, the defendant took the burden of proof, with the right to open and close. The substance of the defense presented by the pleas is, in general terms, that Cothran was speculating on the Board of Trade in grain and provisions; that his operations were conducted through Smith, McCormick & Co., members of the board; that they made, on his account, divers so-called purchases and sales of produce, provisions, etc., resulting in great loss to him; that the pretended purchases and sales were all colorable, and mere devices to cover up gambling transactions, and wagers on the run of the market; that they were violative of public morals, and in contravention of the Criminal Code of the state; that the note sued on was given alone for losses sustained by the defendant in these illegal transactions. The pleas present this defense with such variety of statement as to cover almost, if not quite, every conceivable illegal transaction contemplated either by the statute or the common law; and, as there is no claim that they are not sufficiently broad in this respect, it would subserve no useful purpose to make a more particular statement of their general scope and contents. The trial in the superior court resulted in a judgment in favor of the plaintiffs for $12,460, which having been affirmed by the appellate court for the First district, the defendant brings the case here for review. It is conceded that the plaintiffs hold the note sued on subject to all equities and defenses that could be made against it if the suit had been brought in the name of the payees. The question, therefore, in the trial court, was whether, under the proofs, the defendant was liable on the note to Smith, McCormick & Co. at the time of its transfer to the plaintiffs. Assuming the transactions set up in the pleas to be illegal on the ground that they were mere wagers respecting the grain and provision market, it is not important to inquire with any degree of particularity whether the case falls within the common law, which invalidates all contracts contrary to public policy, or whether it comes within the general statutory provisions against gaming, or whether it falls within the 178th section of the Criminal Code, which is directed exclusively against gambling in grain, stocks, etc.; for the result would be the same in either case. On the other hand, if the transactions between the parties, as shown by the proofs, are not mere wagers, as alleged in the pleas, the judgment below is right, and should be affirmed.

By the common law, wagers not against the interests or feelings of third parties, or which would not lead to the introductionof indecent evidence to enforce them, or which are not immoral or contrary to public policy, were enforceable by action as valid and binding obligations. The tendency, however, of modern decisions, is to enlarge the exceptions to the general rule which permits a recovery upon a wager, and some of the courts have gone so far as to deny the rule altogether, (Collamer v. Day, 2 Vt. 144;Amory v. Gilman, 2 Mass. 1;Babcock v. Thompson, 3 Pick. 446;Carrier v. Brannan, 3 Cal. 328;) and in most of the states where the courts have not, by judicial decision, brought about this desirable reform, the legislature has. Thus it is declared in this state by the 179th section of the Criminal Code, that ‘all promises, notes, bills, bonds, covenants, contracts, agreements, judgments, mortgages, or other securities or conveyances made, given, granted, drawn, or entered into or executed by any person whatsoever, where the whole or any part of the consideration thereof shall be for any money, property, or other valuable thing won by any gaming or playing at cards, dice, or any other game or games, or by betting on the side or hands of any person gaming, or by wager or bet upon any race, pastime, sport, lot, chance, casualty, election, or unknown or contingent event whatever, or for the reimbursing or paying any money or property knowingly lent or advanced, at the time and place of such play or bet, to any person or persons so gaming or betting, or that shall, during such play or betting, so play or bet, shall be void and of no effect.’ It is clear from this section of the statute, without regard to the common law, there can be no such a thing as a valid wagering contract in this state, and that he who knowingly advances money or other property to either of the contracting parties, to be used for such purpose, is equally guilty with the parties to the wager, and no action will lie against the borrower to recover it back. The 178th section, above referred to, provides that ‘whoever contracts to have, or give to himself or another, the option to sell or buy at a future time any grain or other commodity, * * * shall be fined not less than $10, nor more than $1,000, or confined in the county jail not exceeding one year, or both; and all contracts made in violation shall be considered gambling contracts, and shall be void.’ According to the construction heretofore placed upon this section, the defense relied on, if satisfactorily established, would fall within its provisions. Pearce v. Foote, 113 Ill. 228. But, leaving both sections of the statute cited entirely out of view, we are clearly of opinion that dealing in ‘futures' or ‘options,’ as they are commonly called, to be settled according to the fluctuations of the market, is void by the common law; for, among other reasons, it is contrary to public policy. It is not only contrary to public policy, but it is a crime,-a crime against the state, a crime against the general welfare and happiness of the people, a crime against religion and morality, and a crime against all legitimate trade and business. This species of gambling has become emphatically and pre-eminently the national sin. In its proportions and extent it is immeasurable. In its pernicious and ruinous consequences it is simply appalling. Clothed with respectability, and entrenched behind wealth and power, it submits to no restraint, and defies alike the laws of God and man. With despotic power it levies tribute upon all trades and professions. Its votaries and patrons are recruited from every class of society. Through its instrumentality the laws of supply and demand have been reversed, and the market is ruled by the amount of money its manipulators can bring to bear upon it. These considerations imperatively demand at the hands of the courts of the country a faithful and rigid enforcement of the laws which have been ordained for the suppression of this gigantic evil and blighting curse.

The facts put in issue by the pleas, and upon which the rights of the parties depend, were clearly and distinctly alleged on the one side, and denied on the other. The parties, in the presence and under the direction of the court, submitted evidence to the jury upon the issues thus formed,-one to prove the existence, and the other the non-existence, of the alleged facts. The jury found adversely to the appellant. Whether the evidence warranted the finding of the jury presented another and distinct question, which the unsuccessful party had the right to have reviewed. He has availed himself of this right, first by taking the opinion of the trial court, and secondly that of the appellate court. Both these courts have found the facts the same way the jury did, and this would seem to be conclusive. It is urged, however, that there is no evidence to sustain these findings, and that this court must reverse the case for that reason, otherwise there would be a failure of justice. A moment's reflection ought to demonstrate the fallacy of this position. It is not a question of right or abstract justice, but it is a question of jurisdiction and power in this court to review a decision of the appellate court upon the facts. The legislature in its wisdom has given the appellate courts of this state exclusive jurisdiction over such questions, subject to certain limitations not affecting this case, and hence there is a total want of power in this court to interpose. There is no hardship in this which is not encountered in every case where the appellate court makes a wrong decision, and no appeal is allowed to this, or when this court commits an error, and there are no means of correcting it. We might here dismiss this branch of the case without further remark, but for the fact it has been supposed that, where there is no conflict in the...

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