Gooch v. Faucett

• Decision Date: 22 March 1898
• Citation: 122 N.C. 270,29 S.E. 362
• Parties: GOOCH . v. FAUCETT.
• Court: North Carolina Supreme Court

29 S.E. 362

122 N.C. 270

GOOCH .

v.FAUCETT.

Supreme Court of North Carolina.

March 22, 1898.

Wagers—Note in Consideration of Bet—Conflict of Laws.

1. Under Code, §§ 2841, 2842, declaring that all bets shall be unlawful, and that all contracts on account of money or property wagered shall be void, a note given in consideration of a bet won on a horse race could not be enforced, though given in a state in which such contracts are valid.

2. In the absence of evidence as to the statute law of another state once under the jurisdiction of England, it will be presumed that the common law exists in such state.

Appeal from superior court, Granville county; Allen, Judge.

Action by W. H. Gooch against G. H. Faucett. From a judgment on a verdict in favor of defendant, plaintiff appeals. Affirmed.

Edwards & Royster, for appellant.

A A. Hicks, for appellee.

FAIROLOTH, C. J. C. H. Morton and defendant agreed to have a horse race, and it was also agreed that the winner should have the other's horse. The race was run, and Morton was the winner, and they valued defendant's horse at $100, and, instead of delivering the horse, he gave his note to Morton for $100. All this occurred in the state of Virginia. Subsequently the defendant renewed said note for principal and interest, and gave the note sued on, which was assigned to plaintiff after maturity. The renewal took place in North Carolina. Without deciding whether the renewal was a North Carolina contract, we will treat it as a Virginia contract, according to plaintiff's contention. The defendant pleads and relies upon Code, §§ 2841, 2842. These sections declare that all wagers, bets, or stakes, depending upon any race, lot, or chance, etc., shall be unlawful, and all contracts, etc., on account of money or property so wagered, bet, or staked, shall be void. It does not appear whether there is any statute in Virginia denouncing betting on races as illegal. The statute law of another state is a question of fact, to be proved like any other fact. In the absence of such proof, in those states once under the jurisdiction of England, from which they severed their connection, it is presumed that the common law prevails. Griffin v. Carter, 40 N. C. 413; Cade v. Davis, 96 N. C. 139. This presumption arises from the rules of comity among the states. This is not a right of either state, but is permitted and accepted by the states from mutual interest and convenience, from a sense of the inconvenience which would otherwise result, and from a moral necessity to do justice in order that justice may be done in return. Without this rule the law of one state can have no force in another. But there is no comity among the courts of different states. They administer the law in the same way and by the same reasoning by which all other principles of the municipal law are ascertained and guided. It is the duty of every state to look to the interest of its own subjects. Comity, being voluntary, and not obligatory, cannot supersede all discretion on the subject. Vattel, at page 61, says: "It belongs exclusively to each nation [state] to form its own judgment of what it prescribes to it, —what Is proper or improper for It to do; and it will examine and determine what it can do for another without neglecting the duty which it owes to itself." No state can demand the recognition of Its laws in another, if they are deemed by the latter to be impolitic or unjust, of bad morals, or injurious to the rights and interests of its citizens or against Its public policy. In Bank v. Earle, 13 Pet 519, 589, Chief Justice Taney said: "The courts of justice have always expounded and executed them [contracts] according to the laws of the place in which they were made, provided that law was not repugnant to the laws or policy of their own country. The comity thus extended to other nations is no impeachment of sovereignty. It is the voluntary act of the nation by which it is offered, and is inadmissible when contrary to its policy or prejudicial to its interests." Story, Conn. Laws, p. 35, § 38, says: "In the silence of any positive rule, * * * courts of justice presume the tacit adoption of them [foreign laws] by their own government, unless they are repugnant to its policy or prejudicial to its own interest." Many other authorities to the same effect might be cited. Trasher v. Everhart, 3 Gill & J. 244; Pope v. Hanke, 155 111. 617, 40 N. E. 889. There is a difference between the right and the remedy. The courts will look to the lex loci contractus to construe the contract, but will not look there for the remedy. Bish. Cont. (Enlarged Ed.) § 1371.

We are now to the question whether gaming, betting on horse races, etc., are contrary to public policy and injurious to the interests of the citizens of the state. If so, as we have said above, it is not obligatory on the state to recognize, nor the duty of the courts to enforce, such forbidden contracts. The statute (Code, § 2841), having existed in force nearly a century, affords pregnant proof that our legislature and people have considered that the acts prohibited would be dangerous to the public policy and interest of the state. "The vice aimed at...