Fareira v. Gabell

• Decision Date: 10 March 1879
• Court: Pennsylvania Supreme Court
• Parties: Fareira <I>versus</I> Gabell.

89 Pa. 89

Fareira versus Gabell.

Supreme Court of Pennsylvania.

February 7, 1879.

March 10, 1879.

February 7th 1879.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, WOODWARD, TRUNKEY and STERRETT, JJ.

Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of January Term 1879, No. 64.

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E. Cooper Shapley, David W. Sellers and George W. Biddle, for plaintiff in error.—If the plaintiff can make out his case irrespective of the prohibited subject he can recover, and the defendant cannot set up a prior invalid consideration to defeat him. To prevent a recovery the very contract sued on must be void or illegal. The notes themselves, when in evidence, were sufficient to warrant a recovery: Faikney v. Reynous, 4 Burr. 2069; Petrie et al. v. Hannay, 3 Term R. 418; Tenant v. Elliott, 1 Bos. & Pul. 3; Farmer v. Russell, Id. 297; Bulmers, Ex parte, 13 Vesey 315; Montefiori v. Montefiori, 1 Wm. Black. R. 362; Osborn v. Moss, 7 Johns. 161; Biddis v. James, 6 Binn. 329; Swan v. Scott, 11 S. & R. 155; Fairbanks v. Blackington, 5 Pick. 93; Bredin v. Kingland, 4 Watts 420; Armstrong v. Toler, 11 Wheat. 258; Telford v. Adams, 6 Watts 433; Lestaspies v. Ingraham, 5 Barr 81; Thomas v. Brady, 10 Id. 169; Fox v. Cash, 1 Jones 207; Eyrick v. Hetrick, 1 Harris 488; Scott v. Duffy, 2 Id. 20; Ex parte Pyke, Law Rep. 8 Ch. Div. 754: Smith v. Bouvier, 20 P. F. Smith 325.

Thomas J. Diehl, for defendant in error.—This case falls within that class of actions which the court has decided to be "wagering contracts," and the process of the law cannot be invoked to enforce it. The propositions advanced by plaintiff in error are well considered in the case of Ham v. Smith, 6 Norris 63.

The judgment of the Supreme Court was entered, March 10th 1879.

PER CURIAM.

The questions in this case were fairly submitted to the jury in a full and accurate charge by the learned president of the court below. The principles enunciated by him we consider as entirely settled in Brua's Appeal, 5 P. F. Smith 294, and Smith v. Bouvier, 20 Id. 325. In no view of the charge as a whole was it equivalent to a binding instruction for the defendant.

Judgment affirmed.