Ives v. Boyce
| Decision Date | 09 November 1909 |
| Docket Number | 15,791 |
| Citation | 123 N.W. 318,85 Neb. 324 |
| Parties | EMMA L. IVES, APPELLANT, v. JAMES A. BOYCE, APPELLEE |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ABRAHAM L SUTTON, JUDGE. Affirmed.
AFFIRMED.
Weaver & Giller, for appellant.
M. O Cunningham, contra.
This is an action to recover the sum of $ 1,500 on account of losses sustained by the plaintiff in a "bucket-shop" operated by the defendant. The plaintiff pleads that the defendant operated certain gambling rooms, wherein, by reason of certain gambling devices, wagers and bets were made on the future prices of stocks; that as a part of the gambling device defendant had wire connections with New York, and that a blackboard upon one side of the gambling room, upon which the defendant marked and wrote the quotations for the benefit of his customers, and a "ticker" were also used as other parts of the gambling device; sets forth the ordinary method of stock dealing on "margins"; that the transaction between the plaintiff and defendant "was a bet or wager by means of the aforesaid devices; that it was well understood by the plaintiff that no actual sale of stocks was in contemplation by either of the parties, and that none was in fact made; that the losses or amounts were to be adjusted on either side as determined by the future changes of the price of stocks on the New York City market, and that plaintiff's losses were so adjusted." A general demurrer was filed to this petition, which was sustained by the district court, and the action dismissed.
Plaintiff maintains, first, that she is entitled to recover in this case under the common law, for the reason that, having deposited her money with the defendant to make purchases of stock with the understanding that the difference between the contract and market price be settled in money without delivery of the stocks, in that event, she could revoke the authority to enter into the illegal contract and recover back the money. She bases this contention upon the decision in Munns v. Donovan Commission Co., 117 Iowa 516, 91 N.W. 789. In that case, however, the facts were that the plaintiff claimed that the money was deposited for the purpose of making purchases upon the board of trade, while the defendant's contention was that no purchases were to be made, but that the transaction was merely a bet upon the rise and fall of commodities. Upon this state of facts the court held that the minds of the parties never met, and that, "upon the discovery of the mistake before defendant had done more than enter the transaction on its books, the plaintiff might refuse to proceed farther and insist upon the return of his money." In that case, also, the petition was for money had and received, and the defense set up the illegal contract. The distinction between the instant case and that case, and similar cases cited in the opinion of the Iowa court, is obvious. The petition in this case set forth at length the illegal character of the transaction. It is elementary that no recovery can be had under the common law upon such transactions. The courts will leave the parties where it finds them. Rudolf v. Winters, 7 Neb. 125; Sprague v. Warren, 26 Neb. 326, 41 N.W. 1113; Rogers & Bro. v. Marriott, 59 Neb. 759, 82 N.W. 21; note to Crawford v. Spencer, 1 Am. St. Rep. 745, 758 (92 Mo. 498, 4 S.W. 713).
Plaintiff next contends that, even if not entitled to recover at common law, she has a good cause of action under section 214 of the criminal code, citing in this connection Perry v Gross, 25 Neb. 826, 41 N.W. 799, in which it was held that under this section the plaintiff might recover the amount lost in betting upon the result of a horse race. At the time of that transaction, however, the statute was more general in its terms than now. It then provided: "If any person shall lose any money * * * on any bet or wager, such person may recover the money * * * from the person or persons with whom said bet or wager was made (criminal code 1885, sec. 214)." If the statute had remained as it then was, we think there could be no doubt of the plaintiff's right to recover, since we have uniformly held such a transaction was of the nature of a wager; but in 1887 (laws 1887, ch. 108) this section was amended to read as follows: ...
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