Eldred v. Malloy

• Decision Date: 01 February 1874
• Citation: 2 Colo. 320
• Parties: ELDRED v. MALLOY.
• Court: Colorado Supreme Court

2 Colo. 320

ELDRED v. MALLOY.

Supreme Court of Colorado

February, 1874

Error to Probate Court, Jefferson County.

ASSUMPSIT upon a written instrument in this form:

'GOLDEN CITY, COL. TER., May 20, 1870.

'Nine months after date, for value received, I promise to pay J. A Remington, or order, five hundred dollars, without defalcation or discount, at Golden City, Colorado. The consideration of the above is that if the railroad is completed and cars running to a point inside the Table Mountains, at Golden City, Colorado territory, on or before the 20th of February, A. D. 1871, the above sum will be duly paid to the before-mentioned J. C. Remington; otherwise the obligation to be null and void.

'STEPHEN ELDRED.' Remington assigned to Gorman and the latter assigned to defendant in error, who was plaintiff below.

At the trial several witnesses testified that the contract was given upon a wager as to when the Colorado Central railroad would be completed to Golden City. There was also evidence to show that the road was completed in September, 1870.

The plaintiff had judgment.

Messrs MILLER & MARKHAM, for plaintiff in error.

Mr. A H. DEFRANCE, for defendant in error.

BELFORD J.

Notwithstanding the fact that contracts of wager have been regarded as valid at common law, a disposition has been steadily growing in all respectable courts to discountenance and ignore them. It is generally conceded that the principle was engrafted on that system at a time when but little consideration was given to the subject, and the right to recover in such cases quite fully established before any searching inquiries were made into the moral tendencies of the doctrine. While bowing to the authority of Lord MANSFIELD, such able jurists as ELLENBOROUGH and CAMPBELL and LE BLANC have declined to entertain such cases, while other judges have refused to proceed as long as any thing else could be found to do, constantly declaring that were the question a new one, the rule would be different.

The manifest disfavor extended to these contracts by the English judges, and the unremitting efforts that are being made to get rid of a rule established through the inadvertence of their predecessors, convinces me, that in upholding these contracts, the earlier decisions were founded on a misapprehension of the common law.

The courts of this territory have enough to do without devoting their time to the solution of questions arising out of idle bets made on dog and cock fights, horse races, the speed of ox trains, the construction of railroads, the number on a dice or the...