Dunman v. Strother

• Decision Date: 31 December 1846
• Parties: ROBERT DUNMAN v. WALTER STROTHER, USE OF ETC.
• Court: Texas Supreme Court

1 Tex. 89

ROBERT DUNMAN

v.WALTER STROTHER, USE OF ETC.

Supreme Court of Texas.

December Term, 1846.

Appeal from Harris County.

Where one party, by his written obligation, promised another twenty good cows and calves on or before a certain day, for value received: Held, that the obligee was not bound to make a demand for the same. It was the duty of the obligor to have delivered the cattle at the time specified, and failing to do so he became liable to pay their value in money. [ Post, 503, 535; 19 Tex. 238;20 Id. 158;21 Id. 463.]

Under existing laws, wagers on horse races are not illegal in this state, and an action will lie for their recovery. [6 Tex. 454;8 Id. 10;9 Id. 260;12 Id. 290.]

Mr. Justice Wheeler, being sick, did not sit in this cause.

The facts are fully stated in the opinion of the court.

J. W. Henderson, for appellant, contended:

1st. That as the cause of action was for specific property, the plaintiff should have averred and proved a demand, which was not done.

2d. That the court erred in charging the jury that money won upon a horse race was recoverable, because although all such wagers were not expressly prohibited by any law of Texas, they were clearly contrary to good policy and should not be sanctioned by the courts. He cited Thompson, Morton and Payne v. Wiley Harrison, Dallam's Dig. p. 466; Allen v. Heam, 1 T. R. pp. 56-60; Mount and Wardell v. G. & R. Waite, 7 Johns. p. 434; 2 Poth. on Obl. app. p. 6.

Buckley, for appellee, in reply to the first point, contended that the court below should have been requested to charge the jury that proof of a demand was necessary, or there should have been a motion in arrest of judgment or for a new trial, none of which had been done, and therefore the appellant could not avail himself of such objection in this court.

In reply to the second, that the note sued on was executed since the introduction of the common law, under which all species of wagers were recoverable, until made otherwise by statute.

That wagers were also recoverable at civil law. 1 White, 217-218.

HEMPHILL, C. J.

This suit was brought on a written agreement, which was expressed in the following terms: “Houston, November 23, 1840. For value received I promise to pay Walter Strother, or order, twenty good cows and calves, on or before the first day of

+-------------------------------------+
                ¦April, 1841.¦(Signed)¦ROBERT DUNMAN.”¦
                +-------------------------------------+
                

The petition alleges the refusal of the said Dunman to pay, although thereto often requested, and judgment is prayed for the value of the cattle. A want of consideration is pleaded by the defendant, and it is admitted by the plaintiff, in answer to an interrogatory by the adverse party, that the note was won upon a horse race. Evidence was introduced to prove the value of the cattle, and the jury found for the plaintiff the sum of two hundred and forty dollars.

The court charged that money won upon a horse race was recoverable; and exception thereunto was taken by the defendant.

The appellant assigned for error:

1st. There was no demand proven, and the action being for specific property, it was necessary that a demand should be made and proven, to warrant the finding of a jury.

Had the defendant, at the trial, been of the opinion that the case was not duly proven, he should have requested instructions to the jury to that effect, and should have presented in writing, to the judge, such charge or charges as he wished given to the jury, and the refusal of the judge to deliver any portion of these charges would have been a proper subject for review in this court, or a motion for a new trial might have been made.

This would have been the more correct practice, but waiving the exception that has been made to the consideration of this ground of error, here it cannot be made available to the appellant.

The property was not to be delivered on demand, but payable on or before a certain day named in the instrument.

Under the terms of the agreement, no demand was necessary on the part of the creditor.

The contract specifies the time at which the obligation is to be discharged, and it was the duty of the payor to...