Kinney v. Hynds

• Decision Date: 07 July 1897
• Citation: 49 P. 403,7 Wyo. 22
• Parties: KINNEY v. HYNDS
• Court: Wyoming Supreme Court

49 P. 403

7 Wyo. 22

KINNEY v. HYNDS

Supreme Court of Wyoming

July 7, 1897

Rehearing Denied April 19, 1898, Reported at: 7 Wyo. 22 at 36.

Commenced in District Court February 16, 1891.

ERROR to the District Court for Sweetwater County, HON. JESSE KNIGHT, Judge.

Action upon certificates of deposit. The defendant bank made affidavit that they were claimed by a third party, and the latter was ordered to appear and maintain or relinquish his claim. He appeared and answered, and the case proceeded as against him, the bank retaining the money in the meantime by order of the court. The facts are stated in the opinions.

Cause remanded and Modified.

N. E Corthell, for plaintiff in error.

The indorsement and transfer of the certificates of deposit was for a gambling consideration, and therefore void. (R. S Sec. 1001; Bank v. Bank, 38 F. 800; Bank v Portner, 46 O. St., 381; Fuller v. Hutchings, 10 Cal. 523; Mechanics etc. Co. v. Duncan (Tex.), 36 S.W. 887; Nave v. Wilson (Ind.), 38 N.E. 876; Chapin v. Dake, 57 Ill. 295; Flagg v. Baldwin, 38 N.J. Eq. 233; Pope v. Hanke, 155 Ill. 617; Buckman v. Bryan, 3 Denio, 364; Morgan v. Graff, 5 id., 364; Barnard v. Backhaus, 52 Wis. 593; Love v. Harvey, 114 Mass. 80; Hatch v. Borroughs, 1 Woods, 448; Taylor v. Beck, 3 Rand, Va. 316; Roberts v. Taylor, 11 Ala. 656; Williams v. Wall, 6 Mo. 318; Mallett v. Butcher, 41 Ill. 385; Tenney v. Foote, 95 id., 99; West v. Carter, 129 id., 253; Williams v. Judy, 3 Gilm., 282; Unger v. Boos, 13 Pa. 601; Rick v. Briggs, id., 340.) Is the claim within the statute allowing interest? (R. S., Sec. 1313; 153 Mass. 143; 34 A. 788; 42 P. 1024.)

The fact that only part of the money advanced upon the certificates was lost at gaming would not legalize any part of the contract. (Koster v. Seney (Ia.), 68 N.W. 824; Valentine v. Stewart, 15 Cal. 387; 36 S.W. 890; 95 Ill. 99.) It is not required that the money be staked upon the game. It is sufficient if the player is engaged at gaming and the money is advanced at the time and place, etc. (R. S., Sec. 1001.) The fact that the game was licensed does not legalize the contract. (Gibbon v. Gouvenier, 1 Den., 170; Ruckman v. Ryan, id., 340; 1 N.Y. 392; 24 S.W. 992; 20 Tex. 750; 25 id., 587; Bryant v. Mead, 1 Cal. 441; Carrier v. Brannan, 3 id., 328; Scott v. Courteney, 7 Nev., 419; R. S., Sec. 2840.) An innocent holder is not protected. (6 Wend. 613; 21 Ga. 195; 70 N.C. 191; 5 Mass. 286; 21 Ind. 88; 27 F. 909; 57 Ill. 296; 41 id., 384; 84 id., 292; 13 Pa. 601; 36 Miss. 690; 3 Gilm., 282; 2 Strange, 1155; 2 Doug, 736; 21 N.E. 634.)

W. R. Stoll, for defendant in error.

There is no evidence that there was any money lent or advanced to Kinney upon the certificates. The fact that a loan is made to, or a contract entered into with, a person engaged in gambling, at a time and place where such games of chance are being played, is not sufficient to affect such loan or contract with a gaming consideration. (Roberts v. Blair, 11 Colo. 64; Tyler v. Carlisle, 79 Me. 210; Hoyt v. Cross, 108 N.Y. 76.)

The fact that a loan is made to a person engaged in playing at cards, or that a contract is entered into with him to supply him with funds with which to gamble, is no defense in an action to recover the sum so loaned or contracted for, even though the one loaning the money knew that the funds so advanced would be used in gambling. The rule is the same if the one making the loan was a participator in the game. (79 Me. 210; 3 Cliff., 494; 32 Vt. 110; 50 N.H. 253; 3 Den., 107; 3 Metc., 207; 47 Me. 58; 39 Cal. 345; 73 Cal. 411; 33 Mich. 469; 114 Pa. 422; 26 N.E. 568.)

It is only when the money is loaned by one who is himself particeps criminis, that the defense can be set up. (Cases above cited; 25 N.E. 430.)

CORN, JUSTICE. CONAWAY, C. J., and POTTER, J., concur.

OPINION

CORN, JUSTICE.

The defendant in error brought suit in the district court of Sweetwater County against the First National Bank of Rock Springs, upon four certificates of deposit issued by the bank to M. Kinney, the plaintiff in error. The bank filed its affidavit under the statute showing that Kinney claimed the money due upon the certificates, and averring its readiness to pay the same as the court might direct. Kinney subsequently appeared and was substituted as defendant in place of the bank. The cause was tried by the court without a jury, and judgment rendered for the plaintiff below for the amount of the certificates with interest to the date of the judgment.

The evidence, about which there is no dispute between the parties, shows that in October, 1890, Bingham & Rumpf were the proprietors of a saloon in the town of Green River. That in the same room where the bar or counter was, Turpin & McDonald were carrying on a licensed faro game and a licensed game of roulette. Bingham & Rumpf, the saloon-keepers, had no interest in the gambling, Turpin & McDonald simply having a place in the saloon for their games, paying no rent. On the night of the transactions out of which this suit arises, Kinney, the plaintiff in error, was in the saloon playing at faro, and drinking. He lost at the game, and then borrowed $ 25.00 from an acquaintance named Sowadski, which he also lost and expended in drinking and treating others. Afterward he requested Rumpf, who was attending the bar, to cash one of the certificates in question for him. Rumpf had him indorse the certificate, indorsed it himself with the firm name of Bingham & Rumpf, and not having the money himself, obtained it from McDonald who was dealing the faro game, delivered the certificate to McDonald and handed the money to Kinney, the certificate being cashed at its face value. This money was disposed of in paying the money borrowed, buying drinks for himself and others, and playing faro--most of it being lost at the faro game. Two others of the certificates were cashed in precisely the same way and the money lost principally at the faro game, some of it being expended for drinks. The fourth certificate was cashed for Kinney by McDonald directly--Kinney indorsing it and delivering it to him, and he giving to Kinney its face value in money. A portion of this also was lost at the game and expended for drinks, but just how much does not appear from the evidence, as Kinney had some money when the game closed. Kinney was in the saloon five or six hours that evening, being out three or four times, but most of the time in the saloon. Three of the certificates are indorsed "M. Kinney," and "Bingham & Rumpf." The fourth for $ 134.60 is indorsed "M. Kinney" and "John McDonald."

Several defenses are set up, though they are not very definitely separated in the answer. The first is a general denial that the plaintiff acquired any ownership or interest in the certificates. The second sets out that the indorsement and delivery of the certificates was procured by means of fraudulent devices and cheating in connection with the faro game, that the game was played unfairly and unlawfully, and was what is termed a "brace" game.

What is numbered as the third defense sets out first that the consideration for the indorsement and transfer of the certificates was money won from the defendant at faro; and second, that the consideration for such indorsement and transfer was for reimbursing money and faro chips knowingly advanced by McDonald and Bingham & Rumpf to Kinney for the purpose of betting upon the game, and that the money and chips were employed for that purpose, and that Kinney was engaged in playing the game when the advancements were made.

This case is involved in some difficulty from the fact that our statutes upon the subject of gambling are entirely out of line with the legislation of most of the other States. In England and in the States, to whose decisions we are cited as authority by counsel, gaming and the keeping of gaming houses are criminal offenses and visited with heavy penalties. In this State these acts are permitted by law, and what are known as banking games, including faro and roulette, are licensed. Secs. 1459 and 1467, Rev. Stat., prohibit gaming without a license, and designate what games may be licensed. Secs. 1460 and 1462 provide how a license may be obtained and protect the licensee from prosecution. Sec. 1468 provides a penalty for playing unfairly with the intention of winning in any way more than the fair percentage of the game. Sec. 1001 is as follows:

"All contracts, promises, agreements, conveyances, securities, and notes made, given, granted, executed, drawn, or entered into, where the whole or any part of the consideration thereof shall be for any money, property, or other valuable thing won by any gaming, or by playing at cards, or any gambling device or game of chance, or by betting on the side or hands of any person gaming, or for the reimbursing or paying any money or property knowingly lent or advanced at the time and place of any such play, to any person or persons so gaming or betting, shall be utterly void and of no effect. No assignment of any bill, bond, note, or other evidence of indebtedness, where the whole or any part of the consideration for such assignment shall arise out of any gaming transaction, shall in any manner offset (affect) the defense of the person or persons making, entering into, executing, or giving such instrument so assigned, or the remedies of any person interested therein."

The second defense, that the game was unfairly dealt, entirely failed upon the proof, and it is conceded by counsel for the plaintiff in error that the evidence shows that he was given a fair deal, and that the game was up to the recognized standard of a "square faro game" under the laws and customs of the gambling fraternity.

Under the third defense it is alleged that the...