Muller v. Wm. F. Stoecker Cigar Company
| Decision Date | 13 June 1911 |
| Docket Number | 16,446 |
| Citation | 131 N.W. 923,89 Neb. 438 |
| Parties | CHARLES MULLER, APPELLEE, v. WM. F. STOECKER CIGAR COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: HOWARD KENNEDY JUDGE. Affirmed.
AFFIRMED.
James W. Hamilton, for appellant.
A. S Ritchie and Charles L. Fritscher, contra.
This is an appeal from a judgment of the district court for Douglas county. The facts as shown by the bill of exceptions are substantially as follows: Plaintiff is a young man, a former resident of the city of Omaha, and at the time of entering into the contract, hereinafter described, was about 24 years of age. On the 20th day of November, 1905, the defendant, the Wm. F. Stoecker Cigar Company, was engaged in the business of wholesale and retail dealers in cigars, tobacco and smokers' articles, conducting one wholesale and retail business and two other retail stands in the city of Omaha, when plaintiff purchased a half interest in the business, paying in advance the sum of $ 500 in cash, when the parties entered into the following written agreement: The invoice was entered upon and continued until completed some days later. In making the invoice a large number of devices known as slot machines were inventoried as a part of the stock. The number of those machines in the stores and in use is not clearly shown, but there were probably about 20 of them. No objection was made to them, and they were accepted by plaintiff as a part of the stock of merchandise purchased by him. The payment of the remainder of the purchase price was, by mutual consent, deferred for some days, owing to the absence from the city of plaintiff's father, whom plaintiff desired to consult, preferring that the purchase should receive the approval of his paternal ancestor before final payment. Upon the return of plaintiff's father, who disapproved of the purchase, plaintiff refused to complete the transaction, assigning as his reason therefor that his father had other plans for him. He demanded the return of the $ 500 paid. Defendant refused to comply with the demand and insisted that plaintiff comply with his contract.
Without entering upon a description of the slot machines in use in the business, we think it must be, and is, conceded that they were all gambling devices, used probably not so much as yielding a revenue to the stores in the way of winnings, but for the purpose of stimulating trade, the purchasers preferring to take a chance of heavier winnings rather than to buy goods directly at the regular and established prices. While, in the long run, the business may not have been so much the gainer from the winnings proper, yet by allowing others to play the hazard the sales were very much increased. That they were gambling devices is clear enough. It is also apparent that plaintiff offered no objection to them, and was in no way conscience smitten, either at the time of the purchase, or thereafter, until he learned by consultation with others that he might avoid his contract and recover back the money paid upon the theory that the purchase of the slot machines was against good morals and public policy, and which his then enlightened conscience could not withstand. He sued defendant for the return of the money paid, instituting his suit in the county court as "for money had and received." Such proceedings were had as resulted in an appeal to the district court, where an amended petition was filed and in which is set out the whole transaction of the purchase of the half interest in the business, the presence and use of slot machines as gambling devices as a part of the purchase, the alleged illegality of the contract, that the business of defendant was illegal and unlawful, and that plaintiff was entitled to the repayment of the $ 500, for which he asked judgment.
The answer of defendant sets up the contract of purchase, the payment of the $ 500, the completion of the invoice, the promise by plaintiff to complete the transaction by the payment of the remainder of the purchase price by a date named, his failure to make the final payment, and that during the whole time of the negotiations, the invoice, and the payment of the $ 500, plaintiff well knew and understood the character of all the stock and fixtures, and the same was satisfactory to him. The reply is a general denial. A jury trial was had, and upon the completion of the evidence the court, on motion of plaintiff, gave the jury a peremptory instruction to return a verdict in favor of plaintiff for the full amount claimed, which was done, and upon which judgment was rendered. Defendant appeals.
The assignments of error are: (1) The verdict is not sustained by sufficient evidence; (2) the verdict is contrary to law; (3) errors of law occurring at the trial; (4) the court erred in sustaining the motion of the plaintiff directing the jury to return a verdict for the plaintiff; (5) the court erred in giving the instructions directing the jury to return the verdict for plaintiff; and (6) error in overruling the motion for a new trial.
There is no evidence in the record of any improper effort on the part of defendant to induce plaintiff to make the purchase of a...
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