Kruse v. Kennett

• Court: Illinois Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Kruse v. Kennett, 181 Ill. 199, 54 N.E. 965 (Ill. 1899)
• Decision Date: 16 October 1899
• Parties: KRUSE v. KENNETT et al.

181 Ill. 199

54 N.E. 965

KRUSE

v.KENNETT et al.

Supreme Court of Illinois.

Oct. 16, 1899.

Error to appellate court, First district.

Action by Simon Kruse, for himself and for Cook county, against Francis J. Kennett and others, to recover treble the amount of money alleged to have been lost in gambling. From a judgment for defendants, plaintiff appealed to the appellate court, and from a judgment of affirmance (69 Ill. App. 566) he brings error. Reversed.

Cartwright, C. J., dissenting.

Foster & Kruse, for plaintiff in error.

D. M. Kirton and Walter S. Hull, for defendants in error.

PER CURIAM.

Appellant filed in the circuit court of Cook county a declaration against appellees, the first count whereof is as follows: ‘For that whereas, said defendants heretofore, to wit, on the 7th day of September, A. D. 1893, at the city of Chicago, county of Cook, and state of Illinois, were engaged,under the firm name of Kennett, Hopkins & Co., in the business of gambling in grain, and in wagering and betting on the market price of grain at a future time; and whereas, the said defendants heretofore, to wit, on the day and year aforesaid, at the city of Chicago aforesaid, made an agreement with one J. Q. Savage that they, the said defendants, would from time to time, as the brokers of said J. Q. Savage, but in their, the defendants', own name, enter into contracts with divers persons for the purchase and sale of grain for future delivery, and that there should be no delivery of the grain so purchased or sold; and that said plaintiff further says that it was then and there further agreed and understood by and between the said defendants and the said J. Q. Savage that the said J. Q. Savage should not be called upon or required to receive, deliver, or pay for any of the grain that might be so purchased or sold by the said defendants for the account of the said J. Q. Savage; that all of the contracts that might be made by the said defendants for the purchase or sale of grain as aforesaid should be settled, before the time for delivery arrived, by the payment or receipt of the difference between the price at which the grain was or might be bought or sold and the market price of like grain for like delivery at the time of settlement, and that all such transactions and deals in grain should be settled upon differences as indicated and determined by the fluctuation of the market; and that plaintiff says that it was then and there further agreed and understood by and between the said defendants and the said J. Q. Savage that the defendants should, from time to time, as the brokers of said J. Q. Savage, but in their, the defendants', own name, make contracts to have and to give to themselves the option to sell and buy grain at a future time; and the plaintiff further says that in pursuance of the aforesaid arrangement, agreement, and understanding, and as the brokers of the said J. Q. Savage, the said defendants, not regarding the statute in such case made and provided, did heretofore, to wit, on the 7th day of September, A. D. 1893, at Chicago aforesaid, enter into contracts for the purchase and sale of a large amount of grain, to wit, 1,000,000 bushels of wheat and 50,000 bushels of corn, for delivery at a future time, and that before the maturity of any of said contracts all of said deals and transactions in grain were closed and settled by the payment or receipt of differences, and that no grain was delivered on said contract; and the plaintiff further says that in pursuance of the aforesaid agreement and understanding, and as brokers of the said J. Q. Savage, the said defendants, not regarding the statute in such case made and provided, did heretofore, to wit, on the 7th day of September, A. D. 1893, at Chicago aforesaid, enter into contracts, in their own name, to have and to give to themselves the option to sell and buy at a future time a large quantity of grain, to wit, 100,000 bushels of wheat and 100,000 bushels of corn, and that, for the purpose of reimbursing and indemnifying the said defendants against losses which they had or might sustain by reason of the deals and transactions aforesaid, the said J. Q. Savage, as J. Q. Savage, A. N. Knapp, Higbee & Savage, McIntosh & Savage, N. L. Stewart, and Savage & Forsythe, did heretofore, to wit, on the 7th day of September, A. D. 1893, at Chicago aforesaid, pay to the said defendants a large sum of money, to wit, the sum of six thousand (6,000) dollars, being money then and there lost and paid by the said J. Q. Savage to the said defendants at one and the same time exceeding the amount of ten dollars, and by the said defendants then and there won of and from the said J. Q. Savage by wagering and betting on an unknown and contingent event, to wit, on the market price of grain at a future time, contrary to the form of the statute in such case made and provided; and the plaintiff says that the said J. Q. Savage did not, within six months from the time he lost and paid the said several sums of money as aforesaid, bring suit to recover the same or any part thereof, whereby, and by force of the statute, to wit, section 132 of chapter 38 of the Revised Statutes of the State of Illinois, an action had accrued to the said plaintiff to have and recover of and from the said defendants, as well for the said county of Cook as for himself, the sum of eighteen thousand (18,000) dollars, being treble the amount in value of the said several sums of money lost and paid by the said J. Q. Savage to the said defendants as aforesaid.’ The declaration contained a second and third count, both in substance the same as the one set out above. The court sustained a general demurrer to the declaration, and, as the appellant (plaintiff below) elected to abide by his pleading, dismissed the action at the costs of appellant. The judgment of the circuit court was affirmed by the appellate court for the First district on appeal, and the cause comes here by further appeal of the plaintiff below.

Section 132 of the Criminal Code (chapter 38, Rev. St.), referred to in the declaration, is as follows: ‘Any person who shall at any time or sitting, by playing at cards, dice or any other game or games, or by betting on the side or hands of such as do game, or by any wager or bet upon any race, fight, pastime, sport, lot, chance, casualty, election or unknown or contingent...