Hatton v. Casey , 14187.
| Decision Date | 18 November 1931 |
| Docket Number | No. 14187.,14187. |
| Citation | 178 N.E. 303,93 Ind.App. 336 |
| Parties | HATTON v. CASEY. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Tippecanoe County; Wm. Crockett, Special Judge.
Action by William P. Casey against Raymond M. Hatton. Judgment for plaintiff, and defendant appeals.
Reversed.
E. Burleigh Davidson, of La Fayette, for appellant.
Vaughan & Vaughan and Chas. D. Lesley, all of La Fayette, for appellee.
Appellee brought this action against appellant to recover the sum of $99.25, alleged to be due for certain merchandise sold and delivered to appellant, and consisting of 56 “Advertoshare checkerboards.” Appellant filed an answer in two paragraphs to the complaint, the first paragraph being a general denial, the second admitting the purchase and receipt of the merchandise and the amount of the contract price therefor, but seeking to avoid liability on the contract by asserting that said Advertoshare checkerboards were gambling devices, and that he had purchased same in ignorance of their real nature, and that, for the reason that said boards were gambling devices, his contract of purchase was void at law and unenforecable; that the consideration for the promise to pay for said boards was and is unlawful, and that said contract and agreement to purchase is without lawful consideration. A reply in general denial to the second paragraph of answer closed the issues. The cause was submitted to the court for trial, and there was a finding and judgment for appellee for the sum of $99.25 and costs.
Appellant filed his motion for a new trial upon the grounds that the finding of the court is not sustained by sufficient evidence, and that the finding of the court is contrary to law. This motion was overruled, and appellant duly excepted and perfected this appeal, assigning as error the overruling of his motion for a new trial.
The evidence in this case discloses that during the month of April, 1930, appellee was the owner and jobber of certain merchandise known as Advertoshare checkerboards, and that during said month a sale was made by appellee of a number of said boards to appellant. Certain letters in evidence disclosed that appellant had written appellee for price, size, and information concerning these boards, and, having received such information, appellant at a later date wrote requesting appellee to ship certain designated boards. Upon receiving this order, the items ordered (which consisted of 25-200, 25-300 and 6-600 size Advertoshare boards) were packed, invoiced, and shipped by express addressed to appellant at La Fayette, Ind. Appellant received this shipment of goods, but upon inspecting the same informed appellee by letter that, as such checkerboards were gambling devices, he would have no use for them, and requested that appellee inform him where to ship such boards in sending them back. The goods have never been returned to appellee, nor has the purchase price been paid.
Appellee's Exhibits 7 and 8 were admitted in evidence, and are exact and correct photographic reproductions of the front and rear sides of the so called Advertoshare checkerboards as sold to the appellant. These boards, as they appear from the exhibits introduced in evidence, have printed thereon as a part thereof a checkerboard, its spaces numbered from 1 to 32 consecutively, and the lower part of such boards are perforated; each board having 600 holes. The evidence is that in each of these holes there is a small slip of folded paper which bears the name of either Polly, Clara, Julia, Flora, Alice, or Nancy; that there is 100 each of these names to each board of 600 holes, and each 100 slips of the same name have the same placement of checkers on the numbered checkerboard; that each name is an arbitrary one given a “set up,” which “set up” is a partially played game of checkers.
If these boards be used for the purpose of holding a contest between checker players, then any person desiring to play pays an entrance fee of 10 cents, which is the only requirement necessary to play the game, and has the right to punch a name from the board. Upon receiving such name, the player by instructions which are attached to the board is instructed to place certain checkers of one color upon certain designated numbered spaces on the numbered checker board, and checkers of the opposing color on other designated spaces, thereby getting what is called a “set up.” That from this step the player who plays both sets of checkers is instructed to move a black checker first, always playing the black to win over the white, not in the manner of give away. That each problem may be solved with a greater or lesser number of moves, but the solution having the least number of moves would be considered the better solution. That the merchant or party owning the board has a “key” to the better solution, and may offer a prize or prizes for any or all solutions, fixing his own conditions as to the best, quickest, neatest, etc., of any kind and all problems.
The testimony of the appellee's salesman, the only witness called in his behalf, is that a suggestive prize list is shipped with the boards but not affixed thereto, and that it is optional with the dealer to arrange the kind...
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