Ryan v. Judy

• Court: Missouri Court of Appeals
• Writing for the Court: BAKEWELL
• Citation: Ryan v. Judy, 7 Mo.App. 74 (Mo. App. 1879)
• Decision Date: 15 April 1879
• Parties: MICHAEL RYAN, Appellant, v. W. W. JUDY, Respondent.

7 Mo.App. 74

MICHAEL RYAN, Appellant,

v.W. W. JUDY, Respondent.

St. Louis Court of Appeals, Missouri.

Apr. 15, 1879.

1. Courts will not interpret the terms of a wager upon a presidential election by an examination of the question as to whether the event by which the bet is to be determined is the popular vote or the vote of the electoral college.

2. Without reference to the gaming statute, there is a common-law right of action for the recovery of the stake at any time before the wager is determined; but if the demand be not made before the chances have changed and before the result may be seen, the law leaves the parties to the consequences of their acts.

APPEAL from St. Louis Circuit Court.

Affirmed.

SMITH & MCCANN, for appellant, cited: Fisher v. Hildreth, 117 Mass. 562; Humphreys v. Magee, 13 Mo. 435; McKee v. Manice, 11 Cush. 361; Richardson v. Kelly, 85 Ill. 491; McDonough v. Webster, 68 Me. 531.

DAVID MURPHY, for respondent, cited: Hickerson v. Benson, 8 Mo. 11; Waterman v. Buckland, 1 Mo. App. 45; Humphreys v. Magee, 13 Mo. 435; Johnston v. Russell, 37 Cal. 670.

BAKEWELL, J., delivered the opinion of the court.

This action was begun before a justice. The written statement is filed to the effect that on September 6, 1876, the plaintiff delivered to the defendant $100, which the defendant received for the use of the plaintiff, to be redelivered to the plaintiff on demand; and that, though requested, the defendant refuses to repay the same.

On trial anew in the Circuit Court, it appeared from the evidence that the plaintiff made a bet with another party on the approaching presidential election. The plaintiff bet $100 that Mr. Tilden would beat Mr. Hayes; his opponent bet the same amount that Mr. Hayes would beat Mr. Tilden, and the money was put up by the parties in the hands of the defendant as stakeholder. One week after the election, the plaintiff demanded the stakes, claiming that he had won the bet. The stakeholder declined to pay without the consent of the other party to the bet, on the ground that Tilden's election was not assured. Subsequently in December, the plaintiff demanded his stake from the defendant. The plaintiff afterwards, on several occasions, demanded his $100, and at last sued for it, on March 28, 1877.

The court instructed that on this evidence the plaintiff is not entitled to recover. The plaintiff took a nonsuit, with leave, and the case is here on appeal.

The statute provides (Wag. Stats. 662, sects. 8, 9), that the stakeholder in any bet declared gaming by the act (and this is such a bet), shall be liable to the party putting the money in his hands, both before and after the determination of the bet, and that “delivery to the winner shall be no defence to an action by the loser, provided a demand has been made upon the stakeholder before the expiration of the time agreed upon by the parties for the determination of the bet.” Any action brought under this section must be commenced within three months from the time the right of action accrued. If this action were upon the statute, it would therefore be barred. But the Supreme Court has decided ( Humphreys v. McGee, 13 Mo. 435) that one may sue at common law and recover the stake at any time before the bet is determined, without reference to the act concerning gaming, and that the limitation prescribed by the act applies only to cases brought under the statute.

At common law, one who declared his dissent to an illegal wager, before the event happened, might recover his money back. After the event it was held that he could not. Lowry v. Bourdieu, 1 and 2 Doug. 470; Aubert v. Walsh, 3 Taun. 277. In the last case, Lord Mansfield intimates (as, indeed, is also intimated by Buller, J., in the other case) that there can be no rescission of the illegal contract, and withdrawing of the stake, where the party seeking to withdraw has waited until the event of the wager may be foreseen. This is laid down as the rule by our own Supreme Court in Hickerson v. Benson, 8 Mo. 12, and that case is still law in...