Higginbotham v. McGready

• Decision Date: 20 June 1904
• Citation: 81 S.W. 883,183 Mo. 96
• Parties: HIGGINBOTHAM, Appellant, v. McGREADY
• Court: Missouri Supreme Court

81 S.W. 883

183 Mo. 96

HIGGINBOTHAM, Appellant, v. McGREADY

Supreme Court of Missouri, First Division

June 20, 1904

Appeal from Washington Circuit Court. -- Hon. Frank R. Dearing Judge.

Reversed and remanded.

James F. Green for appellant; Wm. S. Anthony and C. H. Richeson of counsel.

(1) There was some evidence tending to prove that the note was given, after the poker game was over, to redeem defendant's checks for money loaned defendant. Where there is any evidence tending to prove an issue, it is error to refuse to submit the same to the jury. Hadley v Orchard, 77 Mo.App. 141; Pauck v. Dressed Beef Co., 159 Mo. 467; Gannon v. Light Co., 145 Mo 502. (2) If section 3427, Revised Statutes 1899, makes a negotiable note given for a gaming consideration uncollectible in the hands of an innocent holder for value before the maturity of the note, then it places such note upon a different footing from other commercial paper and denies the holder the rights which belong to other owners of the same character of property. The section is, therefore, unconstitutional and void. State ex rel. v. Ashbrook, 154 Mo. 375; State ex rel. v. Washburn, 167 Mo. 680; State v. Thomas, 138 Mo. 95. (3) The failure of defendant to institute an action to avoid the payment of the note within three months from the date of said note precludes him from making any defense to plaintiff's suit. Sec. 3432, R. S. 1899; Connor v. Black, 132 Mo. 155; Humphrey v. McGee, 13 Mo. 313; Ryan v. Judy, 7 Mo. App 74.

E. M. Dearing and Dinning & Hamel for respondent.

(1) The only question in this case for this court to determine, as we understand it, is, did the Legislature of the State have the power to enact section 3427, Revised Statutes 1899? 2 Beach, Mod. Law of Cont., secs. 1442, 1443, 1480, 1482, 1483, 1484, 1486, 1492; Davis v. Seeley, 71 Mich. 209; Edwards v. Dick, 4 Barn. & Ald. 212; Towne v. Rice, 122 Mass. 67; City of Aurora v. West, 22 Ind. 88; Town of Eagle v. Kohn, 84 Ill. 292; Cowing v. Altman, 71 N.Y. 435; Edwards, Bills and Notes (2 Ed.), p. 349; Woolfolk v. Duncan, 80 Mo.App. 421; Williams v. Wall, 60 Mo. 318; Kitchen v. Greenabaum, 61 Mo. 110; Buckingham v. Fitch, 18 Mo.App. 91. (2) Ballard, the payee of the note in question, if he had not made a qualified indorsement, would have been liable to the plaintiff, but he endorsed the note "without recourse," hence, plaintiff is without remedy. (3) If the note in question grew out of a gambling transaction, a court of justice will not enforce it, and if the contract in fact be only connected with the illegal or immoral transaction and growing out of it, though it be in fact a new contract, it is equally tainted. Hayden v. Little, 35 Mo. 418; Gwinn v. Simes, 61 Mo. 335; Sumner v. Summers, 54 Mo. 110; Kitchen v. Greenabaum, 61 Mo. 110; Buckingham v. Fitch, 18 Mo.App. 91; Bick v. Seal, 45 Mo.App. 475; Ryan v. Judy, 7 Mo.App. 75; Hill v. Johnson, 38 Mo.App. 383; Hatch v. Hanson, 46 Mo.App. 323. There is no distinction between a contract that is immoral in nature and tendency, and therefore void as against public policy, and one that is illegal and prohibited by law. Woolfolk v. Duncan, 80 Mo.App. 427. (4) It is insisted by appellant in point 1 of his brief that "there was some evidence tending to prove that the note was given, after the poker game was over, to redeem defendant's checks for money loaned defendant." There was no substantial evidence tending to prove that this note was given for any other consideration than a gambling debt.

OPINION

ROBINSON, J.

This is an action by the plaintiff, endorsee of a promissory note for $ 500, against defendant, the maker thereof. By answer, the defendant interposed the following as his defense to plaintiff's action:

"That the sole and only consideration moving to the execution of the note in plaintiff's petition described, was money lost by this defendant at a game of chance, commonly called poker, played by means of a gambling device, to-wit, a pack of cards, which said game was played on the day and on the day before the execution of said note, to-wit, January 22, 1900, at the city of DeSoto, Jefferson county, Missouri. Defendant further avers that at the said game of poker at which defendant lost the money for which said note was executed, he (defendant) and D. Ballard, the payee of said note, together with others, played at said game of chance, and that said money was won by the said D. Ballard and the other parties who played at said game of chance; that for the said money so won by the said D. Ballard and the other parties who played at said game of chance, defendant executed to the said Ballard the note sued on herein.

"Further answering plaintiff's petition, defendant denies each and every allegation therein contained, not in this answer expressly admitted.

"Wherefore, the premises considered, the defendant avers that the said note is void and of no effect in law."

To this answer the plaintiff filed the following reply:

"Now comes the plaintiff in the above-entitled cause and for replication to the answer of the defendant in the above-entitled cause denies each and every allegation of new matter in said answer contained.

"Further replying to said answer, plaintiff says that the note sued on in this case was assigned, transferred and delivered to this plaintiff for value before the maturity of said note as averred in plaintiff's petition and that plaintiff was the holder of said note, for value without any notice as to the consideration of said note. And plaintiff avers that, if it were true (which plaintiff denies) that said note was given for a gambling transaction, as averred in defendant's answer, the plaintiff, being a holder for value of said note before the maturity thereof, is entitled to recover the value thereof, and the plaintiff avers that section 3427 of the Revised Statutes of 1899, in so far as said statute authorizes such defense of want of consideration as against this plaintiff, is a violation of section 15 of article 2 of the Constitution of the State of Missouri in that the same impairs the obligation of the contract between the payee of said note and this plaintiff, and further that said section of the statute is violative of section 1 of article 14 of amendments to Constitution of the United States, and of section 10, article 1 of the Constitution of the United States.

"And having fully replied, plaintiff prays judgment as in his petition heretofore prayed."

At the conclusion of the testimony, the plaintiff asked the court to give to the jury the following instructions:

"1. The court instructs the jury that if you find from the evidence that defendant executed the note sued on and delivered the same to D. Ballard for money loaned defendant by said D. Ballard, and that said D. Ballard for value transferred said note to plaintiff before the note became due, and that the note has not been paid, then you will find the issues for the plaintiff for the amount due on the note, although you may further find that defendant borrowed said money and used it afterwards for gambling purposes.

"2. The court instructs the jury that if you find from the evidence that plaintiff purchased the note sued on and paid value for it before its maturity and that he so purchased it without any knowledge that it was given to Ballard for money lost at a poker game, then you will find the issues for the plaintiff, although you may further find the note was given for a gambling debt, as section 3427 of the Revised Statutes of Missouri 1899, is unconstitutional and void in such cases."

These instructions the court refused, and at the instance of defendant, instructed the jury that under the pleadings and evidence plaintiff was not entitled to recover, and directed a verdict for defendant. In due time the plaintiff filed his motion for a new trial, the overruling of which led to the prosecution of his appeal, and the case was sent to this court on account of the constitutional question raised.

As the case was disposed of by peremptory instruction of the trial court directing the jury to return a verdict for the defendant, it will become necessary only to briefly outline the testimony given by plaintiff and one of his witnesses, which was to the effect that plaintiff was an innocent purchaser for the value of the note in suit from the payee thereof before its maturity; that plaintiff had no information or knowledge whatever before or at the time he purchased the note that it had been given on account of a gambling debt, or that it was made as the result of money won or lost at any game or gambling device. By way of rebuttal the plaintiff called as a witness the original payee of the note, Dave Ballard, and since upon his testimony the result of this appeal will be determined, we have thought best to present that testimony in the precise language of the witness, as follows:

"Q. Your name is Dave Ballard? A. Yes, sir.

"Q. You live in DeSoto? A. Yes, sir.

"Q. I show you a note, Mr. Ballard, made payable to you, signed by F. E. McGready, dated January 22, 1900, for five hundred dollars, payable to you or bearer and by you endorsed to Judge Higginbotham, the plaintiff, and ask you if that note was delivered to you by Mr. McGready? A. Yes, sir.

"Q. That was for money you had given Mr. McGready for his checks? A. Yes, sir.

"Q. How much? A. Six hundred dollars.

"Q. What was it furnished in? A. Cash.

"Q. You loaned him six hundred dollars? A. Yes, sir.

"Q. This note was given for six hundred dollars? A. No, sir.

"Q. Did you say you loaned him any money? A. Yes, sir, I loaned him six hundred dollars.

"Q. Did you loan it all at one time? A. No, sir.

"Q. How much at a time? A. I loaned him fifty dollars and he gave me a check signed by...