Roselle v. Farmers' Bank of Norborne

• Decision Date: 23 December 1893
• Citation: 24 S.W. 744,119 Mo. 84
• Parties: Roselle, Appellant, v. Farmers' Bank of Norborne
• Court: Missouri Supreme Court

24 S.W. 744

119 Mo. 84

Roselle, Appellant, v. Farmers' Bank of Norborne

Supreme Court of Missouri, First Division

December 23, 1893

Appeal from Carroll Circuit Court. -- Hon. J. M. Davis, Judge.

Reversed and remanded.

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

(1) The facts in this case did not constitute the purchase of lottery tickets in the state of Louisiana, but was a sale of an interest in lottery tickets in the state of Missouri, and the case falls within the rule announced in Kitchen v Greenbaum, 61 Mo. 110. See Revised Statutes, 1889, sec 3933; Watson v. Mury, 23 N.J.Eq. 257; Fink v Gallager, 49 Conn. 124. (2) The statement in the answer that certain other persons therein named claimed a part of the proceeds of the draft and have notified defendant not to pay plaintiff, constitutes no defense. Boyer v. Hamilton, 21 Mo.App. 520; Hathaway v. Foy, 40 Mo.App. 540. (3) It was error to render judgment in favor of persons who were not parties to the suit.

Morton Jourdan for respondent.

(1) A sale of lottery tickets in the state of Louisiana to a citizen of this state was entirely legal and was no violation of the laws of this state. Laws of Louisiana (Acts 1868, p. 24); 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; Jamison v. Gregory, 4 Met. 363; Holman v. Johnson, Cowper 341; Sortwell v. Hughes, 1 Curtis 244; Pellecat v. Angel, 2 Cromp. Mees. & Ros. 311; Antoine v. Smith, 40 La. Ann. 560; Greenwood v. Curtis, 6 Mass. 358; Com. v. Aves, 19 Pick. 215. (2) It was within the discretion of the trial court to determine the question of costs when it found for defendant. (3) The finding as to costs will not be disturbed, unless it clearly and affirmatively appears that this discretion has been abused. No such presumption can be indulged in this case. On the other hand the presumption must all be resolved in favor of the trial court. Hannon v. Shotwell, 55 Mo. 429; Lewis v. Unnerstall, 29 Mo.App. 474; State v. Cunningham, 100 Mo. 382; Kennedy v. Nicholas, 29 Mo.App. 11; State v. Harkins, 100 Mo. 666; Eidemiller v. Kump, 61 Mo. 340; Campbell v. Coquard, 16 Mo.App. 552; Simpkins v. Simpkins, 22 Mo.App. 25; Johnson v. Lullman, 88 Mo. 567; Gaines v. Fender, 82 Mo. 497; Judy v. Bank, 81 Mo. 404; Erskine v. Lowenstein, 82 Mo. 301; McCain v. Anthony, 21 Mo.App. 83. (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 defendant and the proceeds of said draft were at the time this suit was instituted in possession of defendant and were by defendant brought into court. The claim of the other six interested parties (Long, Beckemier, Tassaro, Smith, McAuliffe and McCuistion) is for money had and received and the judgment of the trial court should be sustained. Keyes v. Bank, 52 Mo.App. 323; 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; Jamison 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. (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? We say no. 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. 376; Holman v. Johnson, Cowper, 341, 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 Tex. 88; Tenant v. Elliot, 1 B. and P. 3; Farmer v. Russell, 1 B. and P. 296; Cahn v. Kensler, 34 F. 472; Jamison v. Gregory, 61 Ken. 363; Express Co. v. Lucas, 36 Ind. 369; McGunn v. Hanlin, 29 Mich. 477; Wilson v. Owens, 30 Mich. 474; Rothrock v. Perkinson, 61 Ind. 46; Orms v. Dauchy, 82 N.Y. 443; Com. v. Cooper, 130 Mass. 288; Story's Conflict of Laws, sections 247 to 254. The courts will not lend their aid or give legal sanction to the attempt of plaintiff to appropriate this money -- an act as morally criminal as theft or embezzlement.

Brace J. Barclay, J., absent.

OPINION

Brace, J.

In this action, the plaintiff seeks to recover the sum of $ 2,518.69 which he alleges in his petition the defendant received as the proceeds of a draft for that amount drawn by the Louisiana National Bank of New Orleans on Winslow, Lanier & Co., of New York, in favor of the plaintiff, and which was indorsed by him and delivered to the defendant to be collected for his account.

The defendant in its answer to plaintiff's petition, says: "It is true as charged in the petition that on the thirteenth day of January, 1891, plaintiff deposited with defendant a certain draft for the sum of $ 2,518.69, drawn and indorsed by the parties therein charged, but defendant alleges and charges that when said draft was deposited as aforesaid it was the property in equal share of plaintiff and the following named persons, to-wit: John McAuliffe, Henry Beckemeir, John McCuistion, Charles S. Smith, George M. Long and Benj. Tassaro, each of said parties owning an undivided one-seventh interest in and to the same, and defendant says that said draft was held by said John E. Roselle in trust and as a trust fund for himself and the parties aforesaid, and when said draft was deposited with said defendant, as in the petition charged, it was deposited by said plaintiff in trust for and to the credit of the plaintiff and the parties aforesaid with instructions to this defendant that when said draft was collected the proceeds thereof, less the charges for collection, were to be divided and credited equally to the plaintiff and the parties aforesaid. Defendant denies that said plaintiff is the owner of or entitled to the entire proceeds of said draft, but admits and charges the interests as aforesaid.

"Defendant further answering says that the Louisiana State Lottery Company is a corporation duly organized under and by virtue of the laws of the state of Louisiana, and as such is engaged in a general lottery business in the selling of tickets and fractional parts thereof for regular monthly drawing. That on the sixteenth day of December, 1890, the plaintiff and John McAuliffe, Charles J. Smith, Benj. Tassaro, Henry Beckemeir George M. Long and J. H. McCuistion, with three other parties, to this defendant unknown, entered into an agreement to buy ten one-twentieth tickets in the Louisiana state lottery at the city of New Orleans, in the state of Louisiana, for the drawing thereof, jointly and in partnership; that the parties last aforesaid furnished their proportionate share of the money necessary to pay for their interest as aforesaid in said tickets; that one of said parties thereupon sent an order for said tickets as aforesaid to said lottery company, and received said tickets by the express company within a few days thereafter. That when said tickets were received the three other parties, to this defendant unknown as aforesaid, by permission of, and agreement with, the plaintiff, and parties aforesaid, selected and withdrew three of the ten one-twentieth tickets as their interest tickets; that the said remaining one-twentieth tickets were owned jointly by the plaintiff and said parties aforesaid.

"Plaintiff owned and was entitled to a one-seventh interest in said seven tickets, which tickets were numbered 4600, 4656, 39558 27093, 19614, 12135, 32079, and that each of the parties aforesaid owned and were entitled to a one-seventh interest in and to said tickets, and that said tickets were held for the joint use and benefit of plaintiff and the parties aforesaid, each being interested one-seventh in same. That said December drawing was duly held on the day of December, 1890, and one of said tickets, to-wit, number 4600, drew the sum of $ 2,500, and said ticket number 4656 drew the sum of $ 20; that said ticket number 39558 drew the sum of $ 5. That when the fact become known to the parties aforesaid that said tickets had drawn said prizes, all of said tickets were delivered to and held by said plaintiff for the joint use and benefit, and in trust for, the plaintiff together with the parties aforesaid, and for the purpose of collecting the same from the Louisiana State Lottery Company at New Orleans, Louisiana. That the plaintiff, by virtue of the agreement aforesaid, and for the use, benefit and interest of all the parties aforesaid, together with himself, proceeded to cause to be collected the three drawing prizes as aforesaid, and received for all of said tickets a certain draft drawn by the Louisiana National Bank, a corporation duly organized under and by virtue of the laws of the United States, and as such doing a general banking business in the City of New Orleans, in the state of Louisiana, for and in the sum and of the value of $ 2,518.69, drawn on the New York correspondent and agent for said Louisiana National Bank, in the City of New York. That each of the parties aforesaid were the absolute owners of an undivided one-seventh interest in and to said draft so received, held,...