Plank v. Swift

• Decision Date: 14 October 1919
• Docket Number: 33029
• Citation: 174 N.W. 236,187 Iowa 293
• Parties: CLARENCE A. PLANK, Appellant, v. DICK SWIFT, Appellee
• Court: Iowa Supreme Court

174 N.W. 236

187 Iowa 293

CLARENCE A. PLANK, Appellant, v. DICK SWIFT, Appellee

No. 33029

Supreme Court of Iowa, Des Moines

October 14, 1919

Appeal from Sioux District Court.--C. C. BRADLEY, Judge.

ACTION at law to recover the amount of certain bank checks, drawn by the defendant, payable to the order of John Wilson. Judgment for the defendant, and plaintiff appeals.

Affirmed.

Van Oosterhout & Kolyn, for appellant.

C. E Gantt, for appellee.

WEAVER J. LADD, C. J., GAYNOR and STEVENS, JJ., concur.

OPINION

WEAVER, J.

The checks sued upon are two in number, one for $ 150, and another for $ 250, both drawn by the defendant, Dick Swift upon the First National Bank of Hawarden, and made payable to the order of John Wilson, a name which appears to be endorsed thereon. Plaintiff, claiming to be a good-faith holder for value, alleges that the checks have been dishonored, and asks judgment against the maker.

The defendant admits making the checks and delivering them to one Edwards, who negotiated them to plaintiff, and pleads in defense that they were made and delivered in payment of a gambling debt, contracted in a game of craps with said Edwards. The issues were tried to the court, a jury being waived. Judgment for defendant.

The plaintiff is a practising lawyer of experience, residing at Hawarden. Living in the same town is the defendant, Swift, a retired farmer, of convivial habits, socially inclined, and (until his experience hereinafter referred to) profoundly confident of his ability to beat a professional gambler at his own game. Edwards is a traveling fakir, who follows up county fairs and other public assemblies where gather the sheep for his shearing; while "Wilson," if there be any such individual anywhere, is not shown to have any definite location, except in jail in Minnesota, on a charge of murder.

Shortly before the date of these checks, Edwards drifted into Hawarden, and, as was quite natural, soon came into contact with Swift. The powerful attraction of similar tastes led them to seek a convenient room, where they spent most of Sunday night together. Swift is candid enough to say:

"I can't say we were both perfectly sober. I don't think we was too sober, or that we was very drunk."

Edwards furnished the dice, which defendant swears he himself carried away at the close of the game (and, indeed, it seems that the dice were all that was left to him when the game was over), when examination revealed that they were "dirty," "loaded," or "marked," to make the game a sure thing for their owner. Being asked by his counsel to explain or describe the game, he proceeded, with apparent surprise at the professed ignorance of his counsel, to elucidate the mystery and science of it, in the following luminous manner:

"It is what is called a crap game. You play this game with dice. Q. How many? A. Two. Q. You shake these dice from a box? A. No; you have them in your hand, and throw them, that way [indicating]. There is no limit to the number that can play the game. Q. How does the game go,--how is the winner and loser determined? A. You don't understand the game? Q. I don't understand the game at all. That is why I am asking you so particularly. A. Well, it is seven come eleven, when they first come out,--see,--and if you don't make it,--see,--if you make a six, you lose,--see? Q. Well, you take turns about throwing the dice? A. Yes; there is the dice,--see,--and I lose if I don't get my seven. You have as many throws as you want until you make that seven, if they first come that way. You can bet all the way from 2 cents to $ 1,000 if you want to. No, we didn't have the money on the table. We just started a game--I had a little silver at first, but not much; but I lost that, and we kept on playing,--see,--and when we got through, I gave him the checks,--see? We were playing for ten and twenty; there wasn't any limit any more. Ten and twenty dollars a throw."

During the night's session, the participants had two reckonings, at the first of which the account was settled by the defendant's check of $ 150, and at the second, the other check was made and delivered. For reasons perhaps not hard to divine, Edwards took the precaution to have both checks made payable to "Wilson." Swift made his way home on Monday morning, and took early opportunity to go to the bank and stop payment of the paper, being led thereto, apparently, not so much because of his losses, as by indignation at the discovery that Edwards had abused his confidence, by cheating him with "dirty" dice.

The truth of defendant's story as to the origin and consideration of the checks is apparently conceded by the plaintiff; or, to say the least, there is no attempt made to deny or discredit defendant's testimony in this respect.

Edwards, apparently finding Hawarden a fertile field for the exercise of his special talent, remained there through the week, without presenting the checks for payment. On September 26th, he was arrested as a vagrant, indulging in games of chance, and brought before the mayor for hearing. Among the entries in the mayor's docket in that proceeding are the following:

"And now, on this 26th day of Sept., 1915, the defendant being brought into court, he was arraigned; says his right name is C. E. Edwards. Defendant was advised of right to Council and time to prepare for trial. Defendant asks that the trial be set for the folling day, and refuses bonds.

"And now, on the 27th day of Sept., 1915, at 3 o'clock P. M the case came on for hearing. Plaintiff appears by himself and his Atty., C. A. Plank, and pleads guilty to the charge as set forth in the information. Defendant by himself and his Atty. pleads bankruptcy and agrees that the fine and penalty to be assessed shall stand in full force against the defendant should he return to Hawarden. It is therefore ordered that the defendant be released and that he according to agreement leave Hawarden at once and the fine and penalty assessed shall stand remitted so long as he returns not to the city but in full force and effect should he return.

"After hearing the plea of the defendant, the evidence offered and the arguments in the case, the Court finds the defendant guilty upon his own plea entered by his Atty. C. A. Plank and no sufficient cause to the contrary being shown, it is ordered, adjudged and...