Kitchen v. Greenabaum

• Citation: 61 Mo. 110
• Parties: JAMES C. KITCHEN, Plaintiff in Error, v. JACOB GREENABAUM AND MOSES GREENABAUM, Defendants in Error.
• Decision Date: 31 October 1875
• Court: United States State Supreme Court of Missouri

61 Mo. 110

JAMES C. KITCHEN, Plaintiff in Error,

v.JACOB GREENABAUM AND MOSES GREENABAUM, Defendants in Error.

Supreme Court of Missouri.

October Term, 1875.

Error to Saline County Circuit Court.

Shackleford & Boyd, for Plaintiff in Error.

I. The term, “lottery ticket,” as used in the statute, means a ticket, the value of which is uncertain, and to be determined by a drawing to take place in the future. The term, as used in the petition, has reference to a ticket which entitled the holder to a definitely ascertained amount--known to the defendants at the time of the contract. The defendants having received the money which had been drawn by the ticket, will not be aided by the illegality of any other contract than that under which he became possessed of the ticket. (Wimer vs. Pritchardt, 16 Mo., 252.)

Phillips & Vest, for Defendants in Error.

Plaintiff's action was based on an illegal transaction prohibited by the Constitution and the statute, (Const. Art. IV, § 28; Wagn. Stat., 503, § 28) and cannot be enforced. (Comyn. Contr., pp. 59-67; U. S. Bk. vs. Owens, 2 Pet., 538; Coppell vs. Hall, 7 Wall., 558; Bank vs. Lanier, 11 How., 369; Downing vs. Ringer, 7 Mo., 585; Mitchell vs. Smith, 1 Binn., 110; Siedersbender vs. Charles, 4 Serg. & R., 160; Biddis vs. James, 6 Binn, 329; see also, Hayden vs. Little, 35 Mo., 421; Maybin vs. Coulon, 4 Dal., 298; Duncanson vs. McLare, 4 Dal., 308; Badgley vs. Beale, 3 Watts, 263; Kepner vs. Keefer, 6 Watts, 231; Wagonseller vs. Snyder, 7 Watts, 343; Clippinger vs. Hepbaugh, 5 W. & S., 315; Wilson vs. Hines, 5 Barr., 452; Columbia Bank and Bridge Co. vs. Haldeman, 7 Watts & S., 233; App vs. Coryell, 3 Penn., 494; Edgell vs. McGlaughlin, 6 Whart., 176; Bruce's Appeal, 5 Smith, 295; Fowler vs. Scully--reported in Law Times for January, 1873; Wilhite vs. Roberts, 4 Dana, 175; Sumner vs. Sumner, 54 Mo., 340.)

The test whether a demand connected with an illegal transaction is capable of being enforced at law, is whether the plaintiff requires the aid of the illegal transaction to establish his case. If the plaintiff cannot open his case, without showing he has broken the law, the court will not assist him, whatever his claim in justice may be upon the defendant. (Duncan vs. Scott, 11 Serg. & R., 164; Thomas vs. Brady, 10 Barr, 170; Scott vs. Duffy, 2 Harris, 20; Evans vs. Deavo, 12 Harris, 65; see especially, Holt vs. Green, 73 Penn. St., 198; 2 Kent Com., 598, [8 Ed.]; Bartlett vs. Viner, Carth., 252; see also, Badgley vs. Beale, 3 Watts, 263; Woodworth vs. Bennett, 43 N. Y., 273; Hodges vs. Torrey, 28 Mo., 99; Langsdon vs. Green, 49 Mo., 363.)

Applying the above rule to the case at bar, the plaintiff cannot recover. The very first step in opening his case must be to show that he sold a lottery ticket to one of the defendants, in violation of the laws of the State.

II. Plaintiff in error claims that the prize had been drawn when he sold the ticket, and that he sues, not for the price of the ticket but for its proceeds. The ticket was still a lottery ticket, whether the prize had been drawn at the time plaintiff sold the ticket to defendant or not. The statute is exceedingly broad, and says nothing about any exception as to time or persons, but strikes at any one who shall be “in anywise concerned in the sale or exposure to sale of any lottery ticket or tickets, or any share or part of any lottery ticket, in any lottery or device in the nature of a lottery, within this State or elsewhere,” etc. According to his own statement he was ignorant at the time he sold the ticket, whether it had drawn any prize or not.SHERWOOD, Judge, delivered the opinion of the court.

This was an action to recover six hundred dollars, alleged to have been fraudulently obtained by defendants from plaintiff.

Plaintiff states in his petition, that about the 5th day of December, 1872, he owned a ticket in an enterprise known as the “Second Grand Gift Concert, for the benefit of the Public Library of Kentucky,” which ticket was numbered 42,464, and which entitled the holder thereof to whatever prize or gift the same might draw upon a distribution, by lot, among the ticket holders in said enterprise, which said drawing was to take place, and did take place, on the 7th day of December, 1872, at the City of Louisville, State of Kentucky, and that at said distribution, or drawing, the said ticket, numbered 42,464, and of which plaintiff was at that time the owner and holder, drew a gift or prize of the value of six hundred dollars, to which the plaintiff was entitled as the owner of said ticket; that, at the time of said drawing, he was at his home in Saline county, Missouri, and that afterwards, on December 12th, 1872, not being informed of the result of said drawing, he was induced by the false and fraudulent representations of defendants, who had confederated for the purpose, to sell said ticket to the defendant, Jacob Greenabaum, who afterwards, in the month of December, 1872, obtained “said prize,” to-wit: the said six hundred dollars.

Plaintiff also states that on the said 12th day of December, having no knowledge whatever of the result of said drawing, he inquired of the defendant, Moses Greenabaum, in his store-house, in Saline county, Missouri, concerning the same, who informed plaintiff that he had a paper containing a list of the numbers of the tickets which had drawn prizes in said distribution or drawing, and did produce a newspaper called the Missouri Republican, containing a list of the numbers of the tickets which had drawn prizes amounting to seventy-five dollars and upwards; that after said paper was produced, and said Moses Greenabaum proposed to examine the list and ascertain whether plaintiff's ticket had drawn a prize, the plaintiff gave him the number of his ticket, and said Greenabaum then carefully examined the paper and falsely represented to plaintiff that his ticket was not upon the published list, and that if it had drawn a prize, it was a very small one, and not one of those published; that said Moses Greenabaum left his store-room and confederated with the defendant, Jacob Greenabaum, for the purpose of cheating plaintiff, and that in pursuance of said fraudulent purpose, the defendant, Jacob Greenabaum, knowing that plaintiff had been deceived by the false statements of said Moses Greenabaum, came into said store-room and represented to plaintiff that there was a chance of his ticket, numbered as aforesaid, being one that had drawn a prize of ten dollars, and offered to pay plaintiff five dollars for said ticket, the said Jacob Greenabaum well knowing at the time that said ticket had drawn a prize of six hundred dollars; that plaintiff, being mislead by the said false and fraudulent representations of said Jacob and Moses Greenabaum, and believing the statements made by them to him that his ticket had not drawn a prize exceeding ten dollars, accepted the offer of said Jacob Greenabaum, and delivered up said ticket to him; and that said Jacob Greenabaum afterwards presented said ticket to the managers of the said Gift Enterprise, and received thereon the sum of six hundred dollars.

Plaintiff asks that the sale of said ticket by him to said Jacob Greenabaum be declared fraudulent and void and that he have judgment for the sum of six hundred dollars, and all proper relief.

To this petition the defendants filed their demurrer at the return term of the writ, assigning as ground of demurrer that the petition does not state facts sufficient to constitute a cause of action; because the petition shows that the plaintiff's action is based upon an illegal transaction, viz: the sale by him of a lottery ticket which sale is prohibited by the constitution and laws of the State of Missouri, and the plaintiff cannot establish his case without the aid of such illegal transaction, or without showing that he has broken the law.

The court sustained the demurrer. No amended petition being filed, judgment was then rendered for the defendants, to reverse which plaintiff brings the case here by writ of error.

The Constitution of this State prohibits the legislature from...