Manufacturers' & Mech. Bank v. Twelfth Street Bank

• Decision Date: 04 March 1929
• Docket Number: No. 16517.,16517.
• Citation: 16 S.W.2d 104
• Court: Missouri Court of Appeals
• Parties: MANUFACTURERS' & MECHANICS' BANK OF KANSAS CITY v. TWELFTH STREET BANK et al.

16 S.W.2d 104

MANUFACTURERS' & MECHANICS' BANK OF KANSAS CITY v. TWELFTH STREET BANK et al.

No. 16517.

Kansas City Court of Appeals. Missouri.

March 4, 1929.

Rehearing Denied April 1, 1929.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

"To be officially published."

Petition in the nature of a bill of interpleader by the Manufacturers' & Mechanics' Bank of Kansas City against the Twelfth Street Bank and others, in which defendants George Goode and Ben Portman filed answers and intervening petitions. From a judgment in favor of Goode, defendant Portman appeals. Affirmed.

Walter W. Calvin, of Kansas City, for appellant.

Wilson, Bundschu & Bailey, of Kansas City, for respondent.

BLAND, J.

Plaintiff filed in the lower court a petition in the nature of a bill of interpleader naming as defendants the Twelfth Street Bank, George Goode, and Ben Portman. The Twelfth Street Bank filed a disclaimer. Defendants George Goode and Ben Portman filed answers and intervening petitions, each claiming the proceeds of the checks in question. After hearing the evidence the court rendered judgment ordering the money paid into court; that the proceeds, after the costs were paid, be turned over to the defendant Goode. Defendant Portman has appealed.

The facts show that on October 22d, 1927, defendant Goode procured from the plaintiff, a banking corporation in Kansas City, two cashier's checks, in the sum of $500 each, payable to himself; that on November 2d, 1927, he procured from the plaintiff five cashier's checks for $50 each, also payable to himself; that thereafter on November 2d, 1927, in Kansas City, he together with one Guy Neece, Tate Dunn and others engaged in a dice game commonly known as shooting craps; in which he lost to Dunn all of the cashier's checks during the course of the game, or, if he did not lose them directly to Dunn, the checks having been used as money in the game, they ultimately fell into the hands of Dunn where they were at the conclusion of the game; that plaintiff authorized Dunn to indorse the checks in plaintiff's name; that on the same day at about ten o'clock p. m. Dunn assigned and delivered the checks to the defendant Portman, receiving from him the full face value of the checks in cash; that on the following day Portman deposited the checks in the Twelfth Street Bank; that when the same were presented to plaintiff bank payment thereon was refused for the reason that defendant Goode had ordered plaintiff not to pay same. Defendant Goode testified that he stopped payment on the checks for the reason that the dice furnished by the other gamblers "were loaded."

The court found that Portman was the holder of the checks "in due course," but that as the consideration for their transfer from Goode to Dunn was the payment of losses in a game of chance the conveyances of the same were absolutely void and of no effect and Portman acquired no right or title to the checks.

It is contended by the appellant that it having been established by the testimony and the court having found that he was a holder of the checks "in due course," he was entitled to recover, and that consequently the court erred in rendering a judgment in favor of the defendant Goode. By the terms of section 5744, R. S. 1919, it is provided:

"All judgments by confession, conveyances, bonds, bills, notes and securities, when the consideration is money or property won at any game or gambling device, shall be void, and may be set aside and vacated by any court of competent jurisdiction, upon suit brought for that purpose by the person so confessing, giving, entering into or executing the same, or by his executors or administrators, or by any creditor, heir, devisee, purchaser, or other person interested therein."

And section 5742, R. S. 1919:

"Any person who shall lose any money or property at any game or gambling device may recover the same by civil action."

It is admitted by the appellant that under the provisions of section 5744 that as between Goode and Dunn the transfer of the checks was illegal, but that even before the enactment of the Negotiable Instrument Act a cashier's check or other negotiable instrument was valid in the hands of a bona fide holder for value and before maturity, and even if they were void in the hands of such a party before the enactment of the Negotiable Instrument Act, particularly certain sections thereof (see sections 838, 843, R. S. 1919), defining and relating to holders in due course but not mentioning gambling, that these sections of the Negotiable Instrument Act changed the law as theretofore existing. Of course, there is no merit in the contention that prior to the enactment of the Negotiable Instrument Act a check or other negotiable instrument given or transferred in a gambling transaction was valid in the hands of a bona fide purchaser for value before maturity. See Morris v. White, 83 Mo. App. 194. We do not think that the Negotiable Instrument Act changed the law in reference to the matter. 8 C. J. p. 768; 27 C. J. p. 1072; Plank v. Swift, 187 Iowa, 293, 174 N. W. 236, 8 A. L. R. 309; Levy v. Doerhoefer, 188 Ky. 413, 222 S. W. 515, 11 A. L. R. 207; Fisher v. Brehm, 100 N. J. Law, 341, 126 A. 444, 37 A. L. R. 695; Farmers' State Bank v. Clayton Nat. Bank, 31 N. M. 344, 245 P. 543, 46 A. L. R. 952; Twentieth Street Bank v. Jacobs, 74 W. Va. 525, 82 S. E. 320, Ann. Cas. 1917D, 695.

In the case of Fisher v. Brehm, supra, 100 N. J. Law, 345, 126 A. loc. cit. 445, the court said:

"Where one statute is relied upon to repeal another by implication, the latter statute must be clearly repugnant to the former or be manifestly intended to cover the same subject-matter by way of revision. Hotel Registry Corporation v. Stafford, 70 N. J. Law, 528, 57 A. 145. Repeals by implication are never favored. Id. A court should endeavor by a reasonable construction to uphold both acts. An application of these rules leads us to hold that the Gaming and Negotiable Instrument Acts [2 Comp. St. 1910, p. 2623 et seq.; 3 Comp. St. 1910, p. 3734 et seq.] are not inconsistent, but irreconcilable [reconcilable]; that the third section of the Gaming Act is not repealed by the Negotiable Instruments law; and that an obligation made void by the Gaming Act between the parties cannot be made a valid obligation in the hands of an innocent holder for value."

In the case of Levy v. Doerhoefer, supra, quoting from a prior decision of that court (loc. cit. 418 of 188 Ky. ), it is said:

"`It has been the policy of this state to suppress gaming, and the statutes making gaming contracts void are founded upon what the legislature has for many years deemed to be sound public policy. It is inconceivable that the general assembly, in the passage of the act of 1904 [Acts 1904, c....