Lasseter v. O'neill
| Citation | 135 S.E. 78,162 Ga. 826 |
| Decision Date | 28 September 1926 |
| Docket Number | (No. 5157.) |
| Parties | LASSETER v. O'NEILL. |
| Court | Supreme Court of Georgia |
(Syllabus by the Court.)
An agreement for the purchase and sale of cotton "on margin, commonly called dealing in futures, when the intention or understanding of the parties is to receive or pay the difference between the agreed price and the market price at the time of the settlement, " though it is an agreement which is condemned by Civil Code 1910, § 4258, as unlawful, is not a gaming contract in the sense and meaning of Civil Code, § 4256, to the effect that money paid upon such consideration may be recovered back from the winner by the loser, under certain conditions stated.
[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Gambling Contract.]
Under the answer given above to the first question propounded by the Court of Appeals, the answer to the second question must necessarily be in the negative; and no answer is required to the third question, as an answer to that was requested only in case the first question should be answered in the affirmative.
(Additional Syllabus by Editorial Staff.)
Marginal note to Civ. Code 1910, § 4256, citing Acts 1764, 1765 (Cobb's Dig. pp. 725-727), as source from which it was codified is entitled to consideration as part of statutory law as indicating legislative intent in adopting that section.
Certified Questions from Court of Appeals.
Suit between T. H. Lasseter and J. H. O'Neill. Judgment for the latter, and the former brought error to the Court of Appeals, which court certified questions to the Supreme Court. Questions answered.
The Court of Appeals propounded the following questions for instruction of the Supreme Court, as necessary to a decision in the case:
(1) Is an agreement for the purchase and sale of cotton "on margin, commonly called dealing in futures, when the intention or understanding of the parties is to receive or pay the difference between the agreed price and the market price at the time of settlement, " and being an agreement which is condemned by Civil Code 1910, § 4258, a gaming contract within the sense and meaning of the provision of Civil Code 1910, § 4256, to the effect that money paid "upon such consideration, may be recovered back from the winner by the loser, " under certain conditions? In other words, where one of the parties to such agreement (in which there is no question of agency, but in which the parties deal with each other as buyer and seller) deposits money with the other solely as such "margins" and loses it, is he entitled to recover it, "If he shall sue for the same in six months after the loss"? Thompson v. Cummings, 68 Ga. 124 (2); Cunningham v. National Bank of Augusta, 71 Ga. 400, 51 Am. Rep. 266; Lawton v. Blitch, 83 Ga. 663, 10 S. E. 353; Clarke v. Brown, 77 Ga. 606, 4 Am. St. Rep. 98; Dyer v. Benson, 69 Ga. 609; Anderson v. State, 2 Ga. App. 1, 58 S. E. 401; Miller & Co. v. Shropshire, 124 Ga. 829, 53 S. E. 335, 4 Ann. Cas. 574; Civil Code 1910, § 4261.
(2) Could an action for the recovery of the money so deposited be held good as against a general demurrer, where the agreement is set forth in the petition and alleged to be illegal, and where it is further alleged that because of the illegal character of the agreement as a gaming contract the plaintiff is entitled, under section 4256 of the Civil Code of 1910, to recover the deposits so made? Alford v. Burke, 21 Ga. 46 (4), 68 Am. Dec. 449; Leverett v. Stegall, 23 Ga. 257, 259; Ingram v. Mitchell, 30 Ga. 547 (3); Smith v. Ray, 89 Ga. 838 (1), 16 S. E. 90; Cobb's Digest, 727, 72S.
(3) If both of the above questions should be answered in the affirmative, would it ordinarily be necessary for the plaintiff to allege a previous demand for payment or some legal reason for not having made such demand? Dancy v. Phelan, 82 Ga. 243 (2), 10 S. E. 205.
Jas. Maddox, of Rome, for plaintiff in error.
Denny & Wright, of Rome, for defendant in error.
BECK, P. J. [1] 1. Civil Code 1910, § 4256 provides:
In section 4117 of the same Code it is provided:
"A bare contingency or possibility cannot be the subject of sale, unless there exists a present right in the person selling, to a future benefit; so a contract for the sale of goods to be delivered at a future day, where both parties are aware that the seller expects to purchase himself to fulfill his contract, and no skill and labor or expense enters into the consideration, but the same is a pure speculation upon chances, is contrary to the policy of the law, and can be enforced by neither party."
In section 4253 is it provided:
"A contract which is against the policy of the law cannot be enforced; such are contracts tending to corrupt legislation or the judiciary, contracts in general in restraint of trade, contracts to evade or oppose the revenue laws of another country, wagering contracts, contracts of maintenance or champerty."
The above several sections of the Code of 1910, counted in the order above set out, appeared in identical language in the first Code (Code of 1861) as sections 2717, 2594, and 2714. And they have been embodied in the several succeeding Codes. Each of them outlaws contracts of the character specified in each. Contracts that are illegal will not generally be enforced. The law will leave the parties where it finds them. In Ingram v. Mitchell, 30 Ga. 547 (5), applying this principle it was said:
"When money is actually paid over upon an illegal contract, it is clear that it cannot be recovered back, the contract being executed, and both parties being in pari delicto."
See, also, Dorsett v. Garrard, 85 Ga. 734, 11 S. E. 768.
It would require a statute, in the circumstances mentioned in the foregoing excerpt, to authorize the person who had paid out the money to bring an action to recover it back. The above quoted sections 4117 and 4253 of the Code of 1910, though having the effect of statutes, do not contain any provision authorizing a suit to recover money paid out on the contracts specified therein. Section 4256 alone contains such a provision. The first part of that section outlaws the contracts, while the latter part authorizes suit to recover back money paid out under the contract. In virtue of the adoption of the Code of 1910 by the Legislature, that section has all the binding effect of a statute.
A marginal note to that section cites the Acts of 1764 and 1765 (Cobb 725-727) as the source from which it was codified. That note is entitled to consideration as a part of the statutory law, as indicating the legislative intent in adopting that provision of law. The first section of the act of 1764 related entirely to lotteries and transactions in the nature of lotteries, and was intended to sup press them. The second section was for the purpose of suppressing other forms of gaming. Neither of them authorized the bringing of suits to recover money or property that had been paid out on account of losses incurred by practices condemned in the statute; but in the succeeding year the act of 1765 provided that persons who might lose money or goods by "playing" or "betting" at "any game whatever" might, after having "paid or delivered" the money or goods so lost, maintain a suit for its recovery against the "winner, " if instituted within 6 months "next following, " and, in case the loser failed to institute such suit within 6 months, any other person might bring the suit within four years, "one moiety of the money or effects" to be recovered to be for the use of the person suing for them, and "the other moiety" to be for "the use of the poor of the parish where the offense shall be committed." This act made special reference to the act of 1764, but did not authorize suits to recover money or property paid out on account of losses by lotteries or transactions in the nature of lotteries. It only authorized suits for such recoveries for money paid out or property delivered on account of-losses sustained by "playing" or "betting" "at any game whatever."
So, in the adoption of section 4256, the word "gaming" was used in the sense of "playing" or "betting" at a game; and the provision thereof, "money paid or property delivered up, upon such consideration, may be recovered back from the winner by the loner (italics ours), if he shall sue for the same in six months after the loss, and after the expiration of that time it may be sued for by any person, at any time within four years, for the joint use of himself and the educational fund of the county, " had reference to recovery of money or property paid or delivered up on account of losses by playing or betting at a game. All gaming and gaming or wagering contracts are denounced, but the foregoing is the only instance in which there is legislative enactment authorizing a loser to recover from the winner money or property after it has been paid by the loser to the winner.
The case of Alford v. Burke, 21 Ga. 46, 68 Am. Dec. 449, was a suit against a stakeholder to recover money deposited by the plaintiff as a wager with another on a dog fight. The dog fight did not occur, and consequently there was no "winner, " and the suit was not brought against the winner but against a stakeholder. It was held that the plaintiff could recover from the defendant stakeholder. This case was referred to in Dyer v. Benson, 69 Ga. 609, in which it was held:
"Betting on a horse race is gaming in the sense of the Code; and since its adoption, one...
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... ... Code, and therefore it is entitled to some ... consideration in determining the meaning of the section. In ... Lasseter v. O'Neill, 162 Ga. 826, 135 S.E. 78, ... 49 A. L. R. 1076, it was held that such a note is ... entitled to consideration, as a part of the ... ...