Roselle v. Farmers' Bank of Norborne
| Decision Date | 17 July 1897 |
| Citation | 39 S.W. 274,141 Mo. 36 |
| Parties | Roselle, Appellant, v. Farmers' Bank of Norborne; McAuliffe, Interpleader |
| Court | Missouri Supreme Court |
Appeal from Carroll Circuit Court. -- Hon. W. W. Rucker, Judge.
Reversed and remanded.
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 Postoffice Department, as against good morals and public policy. 3 Am. and Eng. Ency. of Law, p 556, ante and post; Ruhe v. Buck, 124 Mo. 178. (2) The plaintiff holds to the position that there is not a particle of evidence in this case, even tending to prove that these parties jointly purchased these tickets in Louisiana but the evidence does show conclusively and without contradiction, that they were bought by these parties separately and independently of each other, and that whatever claim interpleader has to any portion of the money grows out of an alleged agreement among them made at Norborne Missouri, to divide between them any prize that any one or more of the tickets they had already bought separately might draw. (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 was "that the tickets out of which his interest in the money was derived, was by a joint purchase in the State of Louisiana." Currier v. Lowe, 32 Mo. 203; Capital Bank v. Armstrong, 62 Mo. 65; Taylor v. Cayce, 97 Mo. 249. (4) The evidence in the case at bar does not correspond with the allegation of interpleader's petition, nor is the verdict and judgment responsive to the issuues made by the pleading. Harlan v. St. Louis, 65 Mo. 22; Hunt v. Railroad, 89 Mo. 607. (5) Plaintiff's instructions should have been given. 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 Adm'r, 30 N.J.Eq. 260; Tyler v. Larimore, 19 Mo.App. 445; Buckingham v. Fitch, 18 Mo.App. 91; Thatcher v. Morris, 1 Kern (N. Y.), 137; Kitchen v. Greenabaum, 61 Mo. 110; Scudder v. Atwood, 55 Mo.App. 512. (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. Jur., sec. 227, note 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; Gwinn v. Simes et al., 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.
Morton Jourdan for respondents.
(1) Plaintiff, having failed to answer, reply to or deny the new matter set up in respondent's reply to plaintiff's answer to the interplea, will be taken to have confessed and admitted such new matter. (2) It is evident from the reading of the opinion of the court in Roselle v. The Farmers' Bank of Norborne, 119 Mo. 84, that the matters of difference between plaintiff and the interpleaders are res adjudicata, and especially is this true when the answer of the defendant bank and the interplea of respondents are read. They contain the same facts and are supported by the same evidence. Givens v. Thompson, 110 Mo. 432; Galbreath v. Rogers, 45 Mo.App. 324; Galbreath v. Newton, Ib. 312; Nave v. Adams, 107 Mo. 414. (3) That the tickets were 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. 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. Hatch v. Hanson, 46 Mo.App. 332; State v. Shaeffer, 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. (4) The contract in this case has been executed. The three tickets purchased by the seven parties in interest drew prizes, which were paid to plaintiff, and the $ 2,568 draft received by him in payment was deposited with the defendant, and the proceeds of said draft were at the time this suit was instituted in possession of the bank as bailee, and are now in possession of the court. The claim of the other six interested parties is for money had and received. This being true, the judgment of the trial court protecting the results will be affirmed. Hatch v. Hanson, 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. Mathews, 63 Mo. 371; McIntyre v. Parks, 3 Metc. (Mass.) 207; Jameson v. Gregory, 4 Metc. (Ky.) 370. (5) Is plaintiff to be permitted or to 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? Hatch v. Hanson, 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, 1 Cowper, 343; 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; Booeam v. Crane, 103 Mass. 522; DeLeon v. Trevine, 49 Texas, 88.
This appeal is a part of the same litigation described in Roselle v. Beckemeir (1896) 134 Mo. 380 (35 S.W. 1132). The statement of facts then made is applicable to this appeal also, except so far as modified in this opinion.
Mr. McAuliffe was one of the club of seven who agreed to hold, as a joint venture, the tickets they had obtained in the Louisiana lottery. But there is this vital difference between his position and that of Mr. Beckemeier, the claimant in the other case. McAuliffe was not named or provided for in the agreement between the bank, Roselle, Beckemeier and Tassaro, touching the collection of the draft for the prize money and the distribution of the proceeds of collection. The one seventh share of winnings, which McAuliffe might have claimed under the club agreement, was included in the three sevenths part of the proceeds to be paid by the bank to Roselle when the collection was made (according to the agreement with the bank). But plaintiff did not agree to accept that share for McAuliffe, nor did he recognize the latter's right to any part of the fund, at that adjustment. He declared that McAuliffe and Smith would have to get their shares by law if at all; and he told them so immediately afterward. That left McAuliffe to assert his claim to any part of the fund directly against the plaintiff to whom that part of the proceeds was payable. The bank was under no obligation to pay any part of the fund to McAuliffe.
The claim of McAuliffe was tried along with that of Beckemeier and with a like result, namely, a finding in favor of McAuliffe for the same amount as found for Beckemeier, one seventh of the fund in court. Plaintiff appealed, after the customary steps for review.
1. The plaintiff, under the agreement with the bank, was entitled to receive the one seventh share which McAuliffe claims and which the trial court adjudged to him. But it is plain that the validity of McAuliffe's claim depends on the validity of the original agreement to pool the club tickets. That agreement was made at Norborne in this State, and its legality is to be determined by the laws of Missouri. The facts that the lottery, to which the tickets referred, was to be drawn in Louisiana, and that the tickets and the lottery were valid there, do not give the tickets (or the dealings concerning them) validity in this State.
The people of the State of Missouri "have the inherent, sole and exclusive right to regulate the internal government and police thereof," subject to the paramount force of the federal laws. Const. 1875, art. 2, sec. 2. The federal laws do not sanction the agreement here in question or add anything toward improving its legal quality as determined by the local law. A ticket in a lottery, authorized at the place of issue, can not certainly be regarded as within the protection of the interstate commerce clause of the federal Constitution; certainly not in view of the legislation of Congress touching lotteries. U.S. R. S. (1878), sec. 3894; People v. Noelke (1883) 94 N.Y. 137; Horner v. United States (1893) 147 U.S. 449 (13 S.Ct. 409, 37 L.Ed. 237).
2. The "club" agreement to share the prize that the ticket of any member might draw is therefore to be tested by Missouri law. Besides the sections of the criminal law quoted in the Beckemeier case, must also be borne in mind the civil statute in regard to gaming which plainly defines a public policy on that subject which the courts can not ignore. R. S. 1889, ch. 73. The...
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