Roselle v. Beckemeir

• Decision Date: 26 May 1896
• Parties: Roselle, Appellant, v. Beckemeir
• Court: Missouri Supreme Court

35 S.W. 1132

134 Mo. 380

Roselle, Appellant, v. Beckemeir

Supreme Court of Missouri, First Division

May 26, 1896

Appeal from Carroll Circuit Court. -- Hon. W. W. Rucker, Judge.

Affirmed.

Hale & Son and J. W. Sebree for appellant.

(1) The dealing in lottery tickets has been outlawed by the laws of the United States and by the postoffice department as being against good morals and public policy generally. Ruhe v Buck, 124 Mo. 178; 3 Am. and Eng. Encyclopedia of Law p. 556. (2) There was no evidence whatever that the tickets were jointly purchased in Louisiana; the evidence shows separate and independent purchases. (3) The evidence of a purchase of an interest in the tickets in Missouri was at variance with the case made in interpleader's petition which alleged a joint purchase in Louisiana. Currier v. Low, 32 Mo. 203; Bank v. Armstrong, 62 Mo. 65. Where there is no evidence to support a finding, this court will reverse, even in actions at law. Harlan v. St. Louis, etc., 65 Mo. 22; Hunt v. Railroad, 89 Mo. 607. (4) The evidence in this case shows clearly that the only claim interpleader has to any portion of this prize money grows out of an alleged agreement made at Norborne, Missouri, to form a club -- pool their issues -- founded solely upon the contingency or chance that some one or more of their tickets would draw a prize in the Louisiana lottery, and divide the spoils of their unholy alliance made in violation of the constitution and laws of the state. "No court of justice can in its nature be made the handmaid of iniquity." Sprague v. Rooney, 104 Mo. 358; Tod v. Rafferty's Administrators, 30 N.J.Eq. 260; Tyler v. Larimore, 19 Mo.App. 445; Buckingham v. Fitch, 18 Mo.App. 91. (5) Interpleader has not alleged and proved "where he made a contract for an interest in plaintiff's ticket (which drew the $ 2,500 prize), and that by the laws of that place it was authorized and valid." Thatcher v. Morris, 1 Kern. (N. Y.) 137. He alleges that the contract was made in Louisiana, and was therefore legal according to 46 Mo.App. supra; but the evidence shows that it was made in Missouri, and therefore illegal. Kitchen v. Greenbaum, 61 Mo. 110. The case at bar is on all fours with Kitchen v. Greenbaum, which is approved in Scudder v. Atwood, 55 Mo.App. 522, and cases cited. (6) Plaintiff recovered judgment below for one seventh only, when the pretended agreement with the banker was that three sevenths should be placed to his credit. But that agreement was of no legal effect. It was executory, and will not be enforced. 1 Tiedeman, Eq. Juris., sec. 227, notes 1, 2, and 3, and cases cited. It would not have been executed till the money was actually paid to interpleader. 30 N.J.Eq. 260, supra. Such agreement was without consideration. Swaggard v. Hancock, 25 Mo.App. 607, and cases cited; Gwinn v. Simes, 61 Mo. 338. A moral obligation without a previous legal obligation to support it will not support an express promise. Musick v. Dodson, 76 Mo. 627; Harrison v. McGuire, 18 Mo.App. 517. (7) Had Roselle given his note or check to interpleader it would not have constituted payment nor amount to an appropriation of the fund had it been actually in bank to the credit of plaintiff. State ex rel. v. Wagner, 47 Mo.App. 438, and cases cited; Dickinson v. Coates, 79 Mo. 250. It is only payment when paid. Appleton v. Kennon, 19 Mo. 641; Block v. Dorman, 51 Mo. 32. (8) Even an order by check, much less an oral one, on the bank, had the fund been actually collected and on deposit to plaintiff's credit, would have been revocable by plaintiff. Bank v. Bank, 58 Mo.App. 17. Payment by check is not favored by the law. Montgomery Co. v. Auchly, 103 Mo. 506. (9) The licensee of a lottery franchise has no such vested right therein as will prevent the licensor from taking it away at will. Stone v. State, 101 U.S. 814; Cooley, Const. Lim., p. or sec. 596. (10) The direction of plaintiff to banker to collect the money, and when collected to pay one seventh to interpleader by deposit to his credit or otherwise, did not pass any interest, legal or equitable, to interpleader. 1 Am. Encyclopedia of Law, p. 839, note 1, and p. 840, note 1, and authorities cited.

Morton Jourdan for respondents.

(1) It is evident from the reading of the opinion of the court in Roselle v. Bank, 119 Mo. 84, that the matters of difference between plaintiff and the interpleader are res adjudicata, and especially is this true when the answer of the defendant bank and the interplea of the respondents are read. They contain the same facts and are supported by the same evidence. Given v. Thompson, 110 Mo. 432. (2) In this case the course of the trial court was clearly indicated by this court. Galbreath v. Rogers, 45 Mo.App. 424. (3) And the cause has been retried in strict conformity with that course. Galbreath v. Newton, 45 Mo.App. 312. (4) The judgments here were against the same party, and it can not avail plaintiff to say that in one case the contest was with the bank and in the other with the interpleaders. Nave v. Adams, 107 Mo. 414. (5) The facts disclosed by all the testimony are that some fifteen parties residing at Norborne, Missouri, deposited with one Tassaro $ 1 each with which he, for them, was to purchase an equal number of fractional tickets in the Louisiana state lottery; that he sent the money by express to New Orleans, Louisiana, and received in due time from said lottery company by express the tickets ordered. That the tickets were therefore purchased at New Orleans, in the state of Louisiana and not in Missouri, there can be no question. The Louisiana state lottery was duly incorporated and the sale of its tickets made legal by the laws of Louisiana. Acts of Louisiana, 1868, p. 24. (6) The sale then of lottery tickets in that state to citizens of this state was entirely legal, and not in violation of the laws of this state. Hanson v. Hatch, 46 Mo.App. 332; State v. Shaffer, 89 Mo. 271; State v. Wingfield, 22 S.W. 363; McIntyre v. Parks, 3 Metcalf (Mass.), 207; Kentucky v. Bosaford, 6 Hill (N.Y.), 526; Case v. Riker, 10 Vt. 482; Kling v. Fries, 33 Mich. 275; Jameson v. Gregory, 4 Met. 363; Holman v. Johnson, Cowper, 341; Sortwell v. Hughes, 1 Curtis, 244; Pellecat v. Angel, 2 Cromp., Mus. & Ros. 311; Antione v. Smith, 40 La. Ann. 560; Greenwood v. Curtis, 6 Mass. 358; Com. v. Aves, 19 Pick. 215. (7) When the draft was received, plaintiff divided it equally into sevenths, and with a written memorandum, signed by himself, indorsed and delivered the draft to defendant, with specific instructions as to the disposition of the proceeds. Under these facts no question exists as to the contract having been executed. This being true, the judgment of the trial court protecting the results will be affirmed. Hanson v. Hatch, 46 Mo.App. 332; Cahn v. Kensler, 34 F. 472; Kentucky v. Bosaford, 6 Hill (N. Y.), 526; Martin v. Richardson, 21 S.W. 1039; Stix v. Matthews, 63 Mo. 37; McIntyre v. Parks, 3 Met. (Mass.) 207; Jameson v. Gregory, 4 Met. (Ky.) 370; Antoine v. Smith, 40 La. Ann. 560; Roach v. Type Foundry, 21 Mo.App. 118; McGrow v. Hamlin, 29 Mich. 476; Faikney v. Reynous, 4 Burrows, 2069; Ex parte Bulmer, 13 Vesey, 316. See, also, Keyes v. Bank, 52 Mo.App. 323. (8) Plaintiff will not be permitted or be heard to say that the contract of which he is the beneficiary, in which he is the principal participant, one formed at his special instance and urgent solicitation, is illegal and against public policy, in order that he may be enabled to embezzle and appropriate the proceeds of the draft in which he has no other interest than one seventh. Hanson v. Hatch, 46 Mo.App. 332; Martin v. Richardson, 21 S.W. 1039; Armstrong v. Toller, 11 Wheat. 258; Catts v. Phalen, 2 How. 336; Holman v. Johnson, Cowper, 341; Bank v. Bank, 16 Wall. 483; McBlair v. Gibbs, 17 How. (U.S.) 232; Brooks v. Martin, 2 Wall. 70; Warren v. Hewitt, 45 Ga. 501.

Barclay, J. Brace, C. J., and Macfarlane and Robinson, JJ., concur.

OPINION

Barclay, J.

The original action was begun by plaintiff, Mr. Roselle, to recover of the Farmers Bank of Norborne the proceeds of a draft drawn to plaintiff's order, indorsed by him to the bank, and collected by the latter, on which account he claimed that the bank owed him the amount of the proceeds, $ 2,518.69, with interest, etc.

The answer of the bank was, in substance, a cross bill in the nature of a bill of interpleader, asserting that it held the proceeds of the draft as a trust fund for plaintiff and certain other named persons, claimants, whom it prayed might be made parties to the action in order to have their several interests ascertained. The answer gave a history of the transaction, hereafter recited, and brought the fund into court for disposal. Plaintiff replied; and upon a hearing of these pleadings, the court entered a decree, directing the bank to pay the fund into court, and thereupon be discharged from further liability; and it ordered the parties named in the answer as claimants to present their respective claims to any part of the fund within a given time; and to these claims plaintiff was then to plead within a named period. No appeal was taken from that decree.

The claimants thereafter filed "interpleas" for parts of the fund as directed by the court. These pleadings were statements of the grounds of their respective claims thereto.

Plaintiff insisted that he was entitled to the whole fund. Mr. Beckemeir, respondent in the appeal now before this division, claimed (and ultimately, after a trial, obtained a finding for) one seventh of the fund. From a judgment based on that finding, plaintiff appealed, after an unsuccessful motion for new trial.

The case has been in the supreme court before, and its general outlines appear in the report of that hearing....