D'Orio v. Startup Candy Co.

• Decision Date: 23 April 1928
• Docket Number: 4682
• Citation: 71 Utah 410,266 P. 1037
• Parties: D'ORIO v. STARTUP CANDY CO
• Court: Utah Supreme Court

266 P. 1037

71 Utah 410

D'ORIO v. STARTUP CANDY CO

No. 4682

Supreme Court of Utah

April 23, 1928

Stipulation Remitted April 26, 1928.

Appeal from District Court, Fourth District, Utah County; George P Parker, Judge.

Action by Julius D'Orio against the Startup Candy Company. Judgment for plaintiff, and defendant appeals.

AFFIRMED.

Foot &amp Dawson, of Salt Lake City, for appellant.

F. W. James, of Salt Lake City, for respondent.

THURMAN, C. J. CHERRY, STRAUP, HANSEN, and GIDEON, JJ., concur.

OPINION

THURMAN, C. J.

The complaint alleges that on November 28, 1927, plaintiff sold to defendant, at its special instance and request, certain goods, wares, and merchandise of the reasonable value of $ 157.50, that the defendant promised to pay plaintiff the reasonable value thereof, and that the said sum of $ 157.50 is now due and owing to plaintiff from defendant. Plaintiff prays judgment accordingly.

Defendant by his amended answer admits that it purchased from the plaintiff the goods, wares, and merchandise as alleged in plaintiff's complaint, that the reasonable value thereof was as alleged, and that defendant promised to pay for the same. As an affirmative defense, defendant alleges that the merchandise so sold or attempted to be sold was for use, and to be used, for gambling or lottery, that the said use constitutes a lottery or a gift enterprise or a game of chance, in violation of section 8162 of the Laws of Utah 1917 and the Constitution of Utah, and that therefore the consideration was illegal and void. Defendant prays that plaintiff take nothing by his complaint. Plaintiff replied, denying defendant's affirmative defense. The trial court sitting without a jury found in favor of the plaintiff. From the judgment entered, defendant appeals.

The parties litigant stipulated the facts. The court, after finding the purchase of the goods by defendant, the value thereof as alleged, and the promise of defendant to pay and its failure to pay, made the following findings which reflect the substance of the stipulation:

"That the said merchandise sold to the said defendant consisted of advertoshare game boards. That upon the face of each board there appears a regular standard checker board, and the squares used in the checker problem are numbered. Upon the board there are 300 or more holes perforated through the board, in each of which there is a small slip of paper, and upon the board is a list of 10 or more names, and opposite these names appears the color of the checkers, and after every color appear the numbers upon which these respective checkers are to be placed. The customer pays 10 cents to purchase one of the slips of paper. Upon this slip of paper appears one of the names which appear on the face of the board. That the customer then places the checkers upon the checker board, as is indicated after the name which appears upon his slip of paper. Then he is to move both colored checkers--the dark colored checkers to be moved first. If the customer can then move the checkers in such a way that the dark-colored checkers win over the light-colored checkers, the customer receives a prize. That the slips of paper which the customer has received are good and apply upon the purchase price of merchandise, which is advertised on the face of the board. That in all problems that appear upon the board, the dark-colored checkers can win if the player moves the checkers in the proper way. That in every problem, therefore, the dark-colored checkers can win over the light-colored checkers, if the person playing the game has sufficient skill as a checker player to move his checkers skillfully.

"If the player plays the game in good faith and has the dark-colored checkers win over the light-colored checkers, he receives one of the boxes of candy displayed with the board. There is to be displayed with the board a number of special boxes of candy for the purpose of advertising. The slips which the customer has received are good for 10 cents credit on the purchase price of this special advertising candy displayed whether or not he solves the problem. If he solves the problem, as indicated above, playing in good faith, he is given an additional box of candy as a prize. For the reason that there is also displayed on the face of the board an advertisement of a checker booklet containing the solution of the problems on any board as well as a general treatment of the subject of checker playing, and because it is thus possible for any player to memorize any checker problem and be able to win it invariably, the merchant displaying the board reserves the right and option to give or withhold the prize upon the solution of the problem. This is necessary for his protection, and the player is given notice of this option before he pays the 10 cents. This option is so stated upon the face of the board. But in any event the slip received for 10 cents is good upon the purchase price of the candy and booklet advertised.

"That the element of skill clearly predominates in the game, and the element of chance is negligible. That the said game boards are not used for gambling or betting and are not a lottery, nor a gift enterprise, nor a game of chance. That the said game boards are a game of skill, and do not violate section 8162 or section 8153, Compiled Laws of Utah 1917, nor are they in violation of article 6, § 28, of the Constitution of Utah."

Compiled Laws of Utah, § 8162, relied on by appellant, in part reads as follows:

"Every person who deals or caries on, opens or causes to be opened, or who conducts, either as owner or employee, whether for hire or not, any game of faro, monte, roulette, lansquenet, rouge et noir, rondo, or any game played with cards, dice, or any other device, for money, checks, credit, or any other representative of value shall be deemed guilty of a felony. * * *"

Appellant, in its brief, also refers to an ordinance of Provo City which prohibits the use of any device upon which money is staked or hazarded upon chance. The ordinance was not pleaded, but no objection is made thereto.

Many authorities are cited by appellant to the effect that an illegal consideration will not support a contract. It is not necessary to cite the authorities, as the proposition is elementary.

Was the operation and use of the instrumentality described in the findings a lottery, game of chance, or gift enterprise? This is the question presented by the briefs for our determination.

Compiled Laws of Utah 1917, § 8153, defines a lottery as follows:

"A lottery is any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining...