Hickerson v. Benson

• Court: Missouri Supreme Court
• Writing for the Court: NAPTON
• Citation: Hickerson v. Benson, 8 Mo. 11 (Mo. 1843)
• Decision Date: 31 July 1843
• Parties: HICKERSON & MESSERLEY v. BENSON, WORKMAN & MCCAULEY.

8 Mo. 11

HICKERSON & MESSERLEY

v.BENSON, WORKMAN & MCCAULEY.

Supreme Court of Missouri.

July Term, 1843.

ERROR TO HOWARD CIRCUIT COURT.

CLARK and BELT, for Plaintiffs. 1. The court erred in refusing to give plaintiffs' first instruction. See Chitty on Contracts, 4 Amer. ed. pp. 527-8, and authorities there collected; Watkins v. Stockel's Administrator, 6 Har. and Johns. 436; Brogden v. Walker, 2 Har. and Johns. 292. 2. The court erred in refusing second instruction of plaintiffs. Sec Lowry v. Bourdien, 2 Doug. 470; Williams v. Headly, 8 East, 380 (note A); Tappenden v. Randall, 2 B. and P. 467; Busk v. Walsh, 4 Taun. 290; Denniston v. Cook, 12 Johns. 376. 3. The court erred in refusing third instruction asked by plaintiffs. See Denniston v. Cook, 12 Johns. 376, and Laws United States, 1st March, 1792, whereby Congress is required to be in session second Monday of February every fourth year. Votes to be counted, and election of President ascertained. 4. The court erred in refusing the fourth instruction asked by plaintiffs. See Rev. Code, 290, §§ 1, 3; 4 Mo. R. Shropshire v. Glasscock and Garner, 536; 4 Mo. R. 599, Boynton v. Curle. 5. The court erred in refusing fifth instruction asked by plaintiffs. Busk v. Walsh. 4 Taun. 290; Lowry v. Bourdien, 2 Doug. 470; Tappenden v. Randall, 2 B. and P. 467.

DAVIS, for Defendants. Referred to the following authorities: 8 Johns. R. 147; 4 Johns. R. 426; 12 Johns. R. 1 and 376; 9 Cowen, 160, note A; a general review of all the cases, English and American, 11 Johns. 28. Vischer v. Yates, by Kent. As to wagers void at common law. and those made by the statute, see 3 Wend. 494. McKehon v. Caherty.

NAPTON, J.

The record of this case presents substantially the same points which the court has determined in the case of Hickerson v. Workman and Benson, decided at the present term. The wager, in the present case, was made on the 12th November, 1840. and was, that W. H. Harrison would receive, for President of the United States, thirty electoral votes more than Martin Van Buren. On the trial the court was called upon to say, that, until the first day of January, 1841, Hickerson had a right to rescind the contract. This is the only point in which it varies from the case of Hickerson v. Benson & Workman, and for this refusal of the court so to instruct the jury, the plaintiffs ask a reversal of the judgment. The case of Rust v. Gott 9 Cowen, 171, is relied on, to sustain the position, that until the votes have been canvassed by the highest authority, and the result is officially announced, it cannot be known legally who is elected, and therefore where a bet is made on the final result of an election, either party may rescind before that result has been thus legally and officially ascertained. There is nothing, however, in that case to warrant such a conclusion. It was an action by the winner against the stakeholder, after the stakeholder had returned the note to the maker. The court would not allow a recovery, on the ground, that the wager was illegal, and against the policy of the law, though made subsequently to the election. The tendency of such bets made after the election, but before the result was legally ascertained, was held to be equally pernicious and immoral with those made anterior to the election. But the court did not undertake to determine whether the loser could have recovered against the stakeholder if he had refused to give up his note.

This case falls within the general principle asserted by Chief Justice Mansfield, in the case of Aubert v. Walsh, 3 Taun. 284. After the contract is executed, the property or money delivered, and the risk determined, a losing party is not at liberty then to rescind: his repentance comes too late; the offense against the policy of the law has been consummated, and there is no motive to induce a court of justice to interfere between the parties.

It must be admitted, that the ancient rule on the subject of illegal...