Fuchs v. Goe

• Decision Date: 26 November 1945
• Docket Number: 2321
• Parties: R. J. FUCHS and EDWARD E. MURANE, Plaintiffs and Respondents, v. BEN F. GOE, Defendant and Appellant
• Court: Wyoming Supreme Court

163 P.2d 783

62 Wyo. 134

R. J. FUCHS and EDWARD E. MURANE, Plaintiffs and Respondents, v. BEN F. GOE, Defendant and Appellant

No. 2321

Supreme Court of Wyoming

November 26, 1945

APPEAL from District Court, Natrona County; HARRY P. ILSLEY, Judge.

Action by R. J. Fuchs and another against Ben F. Goe for the value of leased personalty destroyed by fire. Judgment for plaintiffs, and defendant appeals.

Reversed with instructions.

For the defendant and appellant the cause was submitted on the brief and also oral argument of R. R. Rose of Casper, Wyoming.

POINTS OF COUNSEL FOR APPELLANT

The generally established rule, independent of statute, is that contracts made in furtherance of gambling transactions though not immediately involving a wager, are void as against public policy. 24 A. J. 443, Sec. 65.

Muller v. W. F. Stoecker Cigar Company, 131 N.W. 923, 34 L. R. A (N. S.) 573; St. Louis Fair Assn. vs. Carmody, 52 S.W. 365 (Mo. 1899).

A lease is wholly void where the illegal part enters into, and is part of, the consideration for the other covenants and agreements of the parties, but where the illegal part is severable, it does not necessarily invalidate the entire lease. 35 C. J. 1167. Cole vs. Hardware Co., 18 L R. A. (N. S.) 1161.

Recovery of the purchase price from the buyer has been denied where an article is designed and manufactured to be used entirely for gambling purposes, and the seller knows it; and where articles capable of a lawful and of an unlawful use are sold to one known by the seller to be a gambler, he will be charged with knowledge that the buyer does not intend to use them for the lawful purpose. 38 C. J. S. 95.

The value of the personal property is measured by its actual worth. 20 A. J. 339. In determining its worth the proper elements to be taken into consideration are cost, market price when new, the condition of the property, its character cost of replacement, and all matters with respect to the property which a reasonable buyer or seller would consider. 20 A. J. 339; 22 C. J. 179, 183; 31 C. J. S. 892, 893, 894.

For the plaintiffs and respondents the cause was submitted on the brief and also oral argument of W. J. Wehrli of Casper, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS

The law is well settled that money loaned for gambling purposes but not actually so used may be recovered. Dinkelspeel v. O'Day, (Utah) 151 P. 344.

If the plaintiff loans money with an express understanding, intention and purpose that it was to be used to gamble with, and it was used, the debt so created cannot be recovered. Tyler v. Carlisle (Me.) 9 A. 356.

A lawful promise made for a lawful consideration is not invalid, merely because an unlawful promise was made at the same time and for the same consideration. 13 C. J. 512, Section 470. Board of County Commissioners of Natrona County v. Casper National Bank, 56 Wyo. 132, 105 P.2d 578.

A party is not precluded from relief because of his knowledge of an intended purpose of the other party to violate the law. 53 A. L. R. 1366.

Ashford v. Mace, 146 S.W. 474, 39 L. R. A. (N. S.) 1104. Recovery can not be denied unless there is a unity of purpose between the parties, or unless there is some active participation by the party seeking to enforce the contract. Hollenberg Music Company v. Berry (Ark.) 106 S.W. 1172.

An agreement will be enforced, even if it is incidentally or indirectly connected with an illegal transaction, provided it is supported by an independent consideration, or if plaintiff will not require the aid of the illegal transaction to make out his case. But if plaintiff in establishing his case is compelled to resort to the illegal contract no recovery can be had. 55 Wyo. 34.

The appellate court must assume that the evidence in favor of the successful party is true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference which may be reasonably and fairly drawn from it. 4 C. J. 857; Willis v. Willis, 48 Wyo. 403, 49 P.2d 670.

A litigant should not be able to select for rehearing the issue decided adversely to him, and retain the benefit of the decision in his favor. Warren Merc. Company v. Myers, 48 Wyo. 232, 45 P.2d 5.

A bailee or lessee may become an insurer by virtue of special contract. Cook v. Foreman Derrickson Veneer Company, (N. C.) 86 S.E. 289. A bailee may enlarge his legal responsibility by contract, express or fairly implied. Thus, by special contract, a bailee may assume the liability of an insurer. Pennyroyal Fair Ass'n. v. Hite, (Ky.) 243 S.W. 1046.

The real basis of distinction between the liability of a bailee and one acting under a special contract is that the duties of a bailee are fixed by law, and do not extend to losses occasioned by an act of God or circumstances beyond his control, while one acting under a special contract is liable according to the terms of his agreement. Garner v. Quackenbush, 188 N.C. 180, 124 S.E. 154. Sams v. Cochran & Ross Co., (N. C.) 125 S.E. 626.

Cases involving destruction by fire where the lessee or bailee has been held to the liability of an insurer are the following: Gettysburg Elec. Ry. Co. v. Electric Light, Heat & Power Co. of Gettysburg, (Pa.) 49 A. 952; McKinley v. C. Jutte & Company, 79 A. 244, Ann. Cas. 1912A, p. 452; Armstrong v. Maybee, 48 P. 737; Commercial Acetylene Supply Co. v. Fox, 191 P. 33; Sams v. Cochran & Ross, 125 S.E. 626.

Over-ruling a Demurrer to a bad count is harmless error, where the pleading contains a good count and the evidence received was admissible under the good count. Hill v. Norton, (W. Va.) 82 S.E. 363, Ann. Cas. 1917D 489; Laraway v. Croft Lumber Company, (W. Va.) 84 S.E. 333; Hines v. Symington, (Md.) 112 A. 814.

The rule is well settled that a judgment in a civil action will not be reversed for an erroneous ruling where it clearly appears from the whole record that no prejudice could possibly have resulted to the party from such ruling. Davis, et al. v. Lumber Company, 14 Wyo. 517.

To be available as a ground for reversal the claimed imperfection in the findings should have been called to the attention of the trial court in order that it might have had an opportunity to make any necessary corrections. Sewell v. McGovern, 29 Wyo. 62.

Under Rule 14, this court considers only points which are urged in the briefs of the parties. First National Bank v. Ludvigsen, 8 Wyo. 230; Chicago B. & Q. Ry. Co. v. Lampman, 19 Wyo. 106; Wood v. Stevenson, 30 Wyo. 171; Auto Ins. Co. v. Lloyd, 40 Wyo. 44; In re Demorest's Estate, 41 Wyo. 189; In re Goshen Irrigation District, 42 Wyo. 229; Ideal Bakery v. Schryver, 43 Wyo. 108.

RINER, Justice. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

RINER, Justice.

This a proceeding by direct appeal from a judgment of the District Court of Natrona County. R. J. Fuchs and Edward E. Murane, the plaintiffs and respondents here, will usually be referred to as the "plaintiffs" or by their respective names. Ben F. Goe, the defendant in the district court and now the appellant may be conveniently mentioned hereinafter either by his own name or as the "defendant". The material facts presented by the record before us and requiring our consideration would appear to be these:

On the 6th day of August, 1942, the parties, R. J. Fuchs and Ben F. Goe, executed an instrument in writing designated "Lease Contract and Option", wherein Fuchs was named "party of the first part" and Goe as "party of the second part." After reciting that Fuchs was then the owner of the "furniture and fixtures, furnishings and equipment used in the night club known as Club LaVida, in the town of Evansville, Wyoming", that the liquor license for the club, and the building and grounds were owned by other parties and that Goe desired to lease the building and premises and also the furniture, etc., above mentioned, the instrument states:

"NOW, THEREFORE, IN CONSIDERATION of the covenants and agreements hereinafter mentioned to be kept and performed by said Party of Second Part, his executors and administrators, the said Party of the First Part has demised and leased to the said Party of the Second Part all of the furniture, fixtures, furnishings and equipment comprising the night club and used in the night club known as Club LaVida in the Town of Evansville, Wyoming; that a detailed list of all of said furniture, fixtures, furnishings and equipment will be taken at the time possession of the premises and the said furnishings are given to party of the Second Part, and at that time said itemized list will be attached to and become a part of this contract by reference thereto."

The period during which the instrument was to be operative was then set out as "from September 1st, 1942, for, during and until September 1st, 1947", and the rental to be paid by Goe to Fuchs for the hire of this personal property was fixed at the sum of $ 335.00 per month payable in advance on the first of each calendar month. The instrument then provides that:

"And the said Party of the Second Part further covenants with said Party of the First Part that said Second Party has received said personal property in good order and condition, and at the expiration of the time mentioned in the lease will yield up said personal property to said Party of the First Part in as good order and condition as when they were received by Party of the Second Part, loss by ordinary wear, excepted, and also will keep said property in good repair during the period of the lease at his own expense."

This paragraph may conveniently be referred to hereinafter as "No. 9". Sundry other clauses thereafter follow those quoted above and among these may be mentioned one for an...