Drinkall v. Movius State Bank

Decision Date26 October 1901
CourtNorth Dakota Supreme Court

Appeal from District Court, Richland County; Lauder, J.

Action by John Drinkall against the Movious State Bank. Judgment for plaintiff, and defendant appeals. Affirmed.


Purcell & Bradley, for appellant.

Appellant indorsed his cashier's check and delivered it in return for poker chips used in a gambling game and when he was intoxicated. He was at the bank when it was presented for payment and advised the cashier not to pay the same. He did not deny his indorsement and gave no reason to the cashier why it should not be paid. There is nothing to indicate that the bank or its officers tried to avoid notice or prevented the plaintiff from making a full disclosure of his reasons for not wanting the check paid. Watson v. Walker, 23 N.H. 471; Hatch v. White, 22 Pick. 518; Lamphere v. Cowan, 42 Vt. 175. The burden was on appellant to show that Maxwell, the indorsee, was not a bona fide holder. Pennsylvania Bank v. Frankish, 91 Pa. 339. The cashier's check in controversy is a bill of exchange drawn by the drawer upon itself and is equivalent to an acceptance. Ch. 100, Civ. Code 1899, § 185; 1 Daniel's Neg. Inst. 444; 1 Parson's N. & B. 288; 2 Randolph's Com. Pr. 588; Hasey v. Beet Sugar Co., 1 Douglas, 193; Cunningham v. Wardwell, 12 Me 466. A bank issuing a cashier's check has accepted it in advance and is liable to pay it to the payee or to any person to whom the payee has transferred it by indorsement. An acceptance, when once complete, is irrevocable. Byles on Bills, 198; Chitty on Bills, 347; 1 Daniel's Neg. Inst 452; Anderson v. Bank, 1 McCreary, 352. This check stood on the same basis as a certified check. Morse on Banking, § 399. Appellant, as the loser in a gambling transaction, when he indorsed the check to the winner in payment of his gambling debt, fully executed the gambling contract. The bank had no concern with appellant's remedy against the gambler. As between themselves the law left the parties to the gambling transaction where it found them, and respondent cannot be injured in consequence of the transfer of the check upon the illegal consideration. Reed v Bond, 55 N.W. 619; Kerr v. Birnie, 25 Ark. 225; Ager v. Duncan, 50 Cal. 325; Howell v. Fountain, 46 Am. Dec. 415; Morris v. Philpot, 11 Ind. 447; Nudd v. Burnett, 14 Ind. 25; Dumont v. Durfec, 27 Ind. 283; Clark v. Ry. Co., 5 Neb. 314; Hill v. Freeman, 49 Am. Rep. 48; Leveroos v. Reis, 52 Minn. 259, 53 N.W. 1155. The object of the rule as to executed contracts is stated in Morris v. Heinrath 101 Mass. 366, to be that either party to an illegal contract, where they are in pari delicto and the contract is executed, is not to give validity to the transaction, but to deprive the parties of the right to enforce the same or of relief therefrom. Kahn. v. Walton, 20 N.E. 203; Cowells v. Raguet, 14 Ohio 38; Thorne v. Cronize, 16 Ohio 54. There is no evidence that plaintiff's intoxication deprived him of the use of his reason, or that the indorsement was made through fraud, procurement, or undue advantage by the other party. Pom. Eq. Jur. 949.

Freerks & Freerks, for respondents.

The bare indorsement of the cashier's check did not operate as an assignment of the funds against which it was drawn, 2 Daniel's Neg. Inst. 1623; § 189 Rev. Codes, 1899. The consideration of a contract must be lawful. § 3873, Rev. Codes. When the contract has but a single object, and that unlawful, it is void. § 3869, Rev. Codes. The contract under which this check was indorsed to plaintiff was in violation of express law. § 3920, Rev. Codes; Dows v. Glaspet, 4 N.D. 251. Courts will not render their aid to parties conspiring to impede the law, therefore an illegal consideration will not support a contract. Congress, etc., Co. v. Knowlton, 103 U.S. 350; Widoe v. Webb, 20 Oh. St. 431; Sternberg v. Bowman, 103 Mass. 325; Tucker v. West, 29 Ark. 386; Bailey v. Bushing, 28 Conn. 455; Harwood v. Knapper, 50 Mo. 456; Porter v. Jones, 52 Mo. 399. The illegal contract of wager being a nullity, the money paid thereon could be recovered before it had actually been paid into the hands of the winning party. After it had been paid over, the parties being equally in fault, the law would assist neither. Jennings v. Reynolds, 4 Kan. 110; Reynolds v. McKinney, 4 Kan. 94. The contract between the parties to the wager being void, the stakeholder became the agent or bailee of the depositor and held the money subject to his order. The authority of the bank to pay the check in this instance was revoked before payment and its right to pay the same to the indorsee, a party to the gambling transaction, was thereby terminated. Cleveland v. Wolfe, 7 Kan. 185; 2 Parsons on Contracts, 139; Tarleton v. Baker, 18 Vt. 9; Wheeler v. Spencer, 15 Conn. 28; McAllister v. Hoffman, 16 Serg. & R. 141; Morgan v. Groff, 4 Barb. 527. The verdict of the jury will not be disturbed. All doubts are to be resolved in its favor, and there is substantial evidence to sustain the verdict. Halley v. Folsom, 1 N.D. 325; McRea v. Bank, 6 N.D. 353; Rosenbaum v. Hayes, 8 N.D. 461; Becker v. Duncan, 8 N.D. 600; Heyrock v. McKenzie, 8 N.D. 601; Taylor v. Jones, 3 N.D. 235; Clark v. Walker, 7 N.D. 414.

YOUNG J. WALLIN, C. J., concurring in the result.



The plaintiff in the action, John Drinkall, seeks to recover from the defendant, the Movius State Bank, a state banking corporation organized under the banking laws of this state, and doing business in the village of Lidgerwood, the sum of $ 200 and interest, as due and unpaid, on a certain cashier's check or certificate of deposit issued by the defendant to the plaintiff on the 18th day of December, 1899. The defense interposed is payment to the holder and owner thereof in due course of business. The case was tried to a jury, and a verdict returned for plaintiff for the full amount claimed. Defendant moved for a new trial. This was denied, and judgment was entered on the verdict. The defendant appealed from the judgment, and assigns for review in this court the same errors which were relied upon in the trial court in its motion for a new trial.

The complaint, in substance, alleges that on the 18th day of December, 1899, the plaintiff deposited with the defendant bank in Lidgerwood the sum of $ 200; that the defendant issued therefor and delivered to plaintiff its certificate of deposit or cashier's check, dated on that day, and payable to plaintiff on demand; that on the 30th day of December thereafter he duly demanded of defendant the payment of the sum of $ 200 represented by said certificate of deposit or cashier's check; that defendant refused, and still refuses, to pay the same, and has not paid the same, or any part thereof. The complaint further alleges that after receiving said check, and on the same day he went to the place of business of Ralph Maxwell and William Van Dorn, in Lidgerwood, where he became intoxicated, and while so intoxicated he was induced by said Maxwell and Van Dorn to gamble and take part in a game of chance played by means of an instrument known as a "roulette wheel"; that he played at said game of chance and wagered large sums of money thereon; that for the purpose of playing the same was induced to indorse and did indorse the check in question, and delivered the same to the said Maxwell for the purpose of paying money lost by plaintiff, and claimed to have been won by said Maxwell and Van Dorn, in said gambling transaction; that on the following day, to-wit, December 19, 1899, and prior to the presentation of said check to defendant for payment, the plaintiff notified the defendant of the facts in reference to the loss of said check and of the possession thereof by Maxwell and Van Dorn, and instructed said defendant not to pay the same when presented. The answer admits the deposit of money by plaintiff, and the issuance of the cashier's check as alleged in the complaint, but by a denial places in issue the facts as to the loss and notice of loss of the check alleged in the complaint and alleges that "said cashier's check was, on or about the 19th day of December, 1899, presented to the defendant in the usual course of business for payment, by the then holder and owner of said check, properly indorsed by the signature of the plaintiff upon the back of said check, and was, by said defendant, in the usual course of business, paid to the holder of said check." This appeal presents for review the order overruling defendant's motion for a new trial, which involves a consideration of the grounds upon which the motion was based. The errors specified in the statement of case on which the motion was made are 18 in number. They need not be discussed separately. So far as they are important to a review of the order denying the motion for a new trial they are disposed of by our conclusion on the questions which we shall hereafter discuss.

Before taking up the consideration of the questions presented by the assignments of error, a brief statement of facts is necessary. It is established by undisputed evidence that on the 18th day of December, 1899, the plaintiff, Drinkall deposited in the defendant bank in Lidgerwood the sum of $ 200, and received therefor the the cashier's check in suit, which check was signed by the assistant cashier of the bank, drawn on said bank, and made payable in terms to the plaintiff. Thereafter, in the evening of the same day, Drinkall went into a gambling house in Lidgerwood, which was operated by Ralph Maxwell and William Van Dorn, which is known in the record as "Maxwell's Blind Pig," where he drank sufficient liquor to render him intoxicated, and while so intoxicated he was invited into a rear room in the building...

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