Crutchfield v. Rambo

• Decision Date: 29 March 1905
• Citation: 86 S.W. 950
• Parties: CRUTCHFIELD v. RAMBO.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

86 S.W. 950

CRUTCHFIELD v. RAMBO.^*

Court of Civil Appeals of Texas.

March 29, 1905.

Appeal from District Court, Tarrant County; M. E. Smith, Judge.

Action by B. S. Crutchfield against W. H. Rambo. From a judgment for defendant, plaintiff appeals. Affirmed.

Ray Hunter, Hunter & Flood, and Theodore Mack, for appellant. W. P. McLean, for appellee.

FLY, J.

Appellant instituted this suit against appellee, and alleged in the petition: "That heretofore, to wit, on the 4th day of February, 1904, the plaintiff and defendant each purchased at Fort Worth, Texas, two certain lottery tickets in the Honduras National Lottery Company, of Puerto Cortez, Honduras, paying therefor the sum of twenty-five cents each; that after the purchase of said tickets the said plaintiff and defendant, for a valuable and sufficient consideration, agreed by and between themselves that each should hold the two tickets so purchased by him until the drawing, and that if either of the two tickets held by the defendant should draw any prize or sum of money, that defendant would pay over and deliver to the plaintiff one-half thereof, and as a consideration of said promise the plaintiff agreed and promised the defendant that if either of the tickets so held by him should draw any prize or sum of money, that he would pay over and deliver to the defendant one-half of whatever said tickets or either of them might draw in said lottery; that afterwards, to wit, on the 13th day of February, 1904, one of said tickets so held by the defendant, to wit, the one numbered 94,289, drew the sum of $3,750, and afterwords, to wit, on the 20th day of February, 1904, the said lottery company paid over to the defendant the said sum of money." Appellee answered by a general demurrer and general denial, and, specially, that the agreement alleged by appellant was illegal and void and was without consideration, and that, if any such agreement had been made, it had been fully settled by appellant accepting $750 in full payment of his claim against appellee. Judgment was rendered in favor of appellee.

There is no statement of facts in the record, and the findings of fact of the trial judge must form the basis of the opinion of this court. It was found by the court that appellee, on February 4, 1904, told appellant that he intended to purchase two tickets from the agent of the Honduras National Lottery Company of Puerto Cortez, Honduras, who was selling lottery tickets in Ft. Worth, Tex. The appellant gave appellee 50 cents, with the request that he buy him two tickets also. Appellee bought two tickets for himself and two for appellant, paying 25 cents each for them. He delivered the two to appellant that he had bought for him. A proposition was then made by appellee to appellant that, if the latter would give him one-half of what his (appellant's) tickets might draw, appellee would give appellant one-half of what his (appellee's) tickets might draw, in the lottery drawing. This offer was accepted by appellant, each party, however, retaining his own tickets. On February 13, 1904, the lottery company had its drawing at Puerto Cortez, Honduras, and one of appellee's tickets drew the sum of $3,750, and appellee placed his ticket in the hands of the National Bank of Ft. Worth for collection. The amount was collected and placed to the credit of appellee, less the sum of $37.50 for cost of collection. Appellant demanded one-half of the amount, claiming that he was an equal partner, under their agreement, with appellee, in any proceeds from the tickets. Appellee refused to accede to that request, but did give appellant $750, which the former believed to be a settlement of all differences between the parties. The court found, however, that appellant did not so regard it, but accepted what was paid him.

The trial judge held that the contract between the parties to divide the proceeds arising from a drawing in a lottery was contrary to law and public policy, and should not be enforced. We think the conclusion was correct. Lotteries are condemned by the laws of this state, and punishment is provided for those who establish lotteries or who may be engaged in the sale of lottery tickets, and it follows that any contract dependent upon lottery tickets is manifestly contrary to public policy. The contract in this case was based upon the chance of drawing a prize through one or more of the tickets they had purchased, and it would not matter, if, as contended, the parties had formed a partnership and had bought the tickets; the law would not lend itself to compel an accounting between partners engaged in a scheme to make money that is condemned by the laws of the state. There can be no force in the argument that buying lottery tickets is not prohibited by the laws of Texas, and consequently a contract based on the purchase of such tickets would not be obnoxious to public policy. The law, in condemning the sale of lottery tickets, put the stamp of disapproval upon the whole transaction, and the buyer, although no penalty is attached to his act, is engaged in violating one of the statutes of the state. Suppose that a ticket bought by some person should draw a sum of money, but it should be withheld from the purchaser of the ticket, no court would aid the collection of the money from the lottery, for the reason that the buyer and seller would be in pari delicto, and could not enforce their contracts in the courts of the state.

Appellant advances the broad proposition that although the contract as to a division of the possible amounts arising from the lottery drawing was illegal, "yet the law will compel one party to such illegal contract, after the same is completed and the gains and profits collected, to divide with his associate in the contract or enterprise and fairly according to the terms of the illegal contract." Neither the authorities cited by appellant, nor any others consulted by this court, sustain that proposition. In the cases cited by appellant money had been acquired by and through illegal contracts, and those contracts were not enforced, but in every instance agreements made about the property that had been acquired through the illegal original contract, after its acquisition, were the ones enforced.

In the case of Patty-Joiner Co. v. Bank (Tex. Civ. App.) 41 S. W. 173, property had been acquired through an illegal combination, and one of the partners, desiring to make an assignment of his individual assets to pay his individual debts, transferred to his partner all his interest in the firm assets for the purpose of allowing such partner to pay the firm debts, which was fairly done. The contention was that the partnership to buy cotton by suppressing competition was void, and that the assets acquired were owned by the partners individually, and should pass to the individual creditors. This contention was not sustained. The gist of the decision is expressed in a quotation made therein from De Leon v. Trevino, 49 Tex. 88, 30 Am. Rep. 101: "But if a contract is illegal, certainly it does not follow...