Shain v. Goodwin
Decision Date | 04 May 1891 |
Citation | 46 F. 564 |
Parties | SHAIN v. GOODWIN. |
Court | U.S. Court of Appeals — Ninth Circuit |
Vincent Neale, for plaintiff.
Joseph D. Redding, for defendant.
This action was brought by plaintiff to recover the amount due upon two certain promissory notes, each for the sum of $1,500, one dated July 5, 1884, the other October 5, 1884 and each made payable within 90 days after date. The notes were signed by the defendant, and made payable to Edmond Morris, or order. Each note is indorsed as follows The cause was tried before 'the court without a jury. Plaintiff offered the notes in evidence, and then rested. Defendant offered in evidence the deposition of Edmond Morris, taken on behalf of the plaintiff. This was all the testimony taken in the case.
It is contended by the defendant that the notes were given for a gambling debt, and that the burden of proof is upon the holder of these notes to show that he received them before maturity for a valuable consideration, and without notice of any illegality. With reference to the consideration of these notes, Morris testified upon his direct examination as follows:
And upon cross-examination as follows:
The facts in relation to the gambling between these parties is given by Morris as follows:
It appears that before defendant signed the notes in question he had given due-bills for the amount, and these due-bills were surrendered, and the notes executed in proper and dur form. The testimony of Morris relating to the settlement is as follows:
Section 330, Pen. Code Cal., provides that 'any banking game played with cards, dice, or any device, for money, * * * is punishable by fine. ' Section 1667 of the Civil Code provides that a contract which is contrary to the policy of express law, or 'contrary to good morals,' is not lawful.
Conceding, as claimed by plaintiff, that the supreme court of California in Corbin v. Wachhorst, 73 Cal. 411, 15 P. 22, decided that throwing dice for money is not unlawful, and was not such a game as was forbidden by any statute of this state, still the question remains whether, upon the facts of this case, which are dissimilar in several essential features from Corbin v. Wachhorst, the contract between the parties to throw dice for money, upon which the consideration of the notes is based, was not unlawful under the provisions of the Civil Code. In Corbin v. Wachhorst the parties plaintiff and defendant, with two other persons, played at the game of throwing dice, and during the game defendant borrowed small amounts of money, which in the aggregate amounted to $350, and when the game closed the defendant signed a note, and delivered it to plaintiff, for the amount thus borrowed. The decision sustaining the validity of the note thus given is based upon the facts that the money was loaned in good faith, and that it did not appear that the plaintiff won any of the money, or that defendant lost any of it, in the dice throwing. The court said:
In this case it clearly appears that the contract between the defendant and Morris, to whom the notes were given, was to play at the game for $200 per shake, and the defendant lost and Morris won the full amount of money for which the notes were given. This was the only consideration for the notes. The contract was 'contrary to good morals,' and therefore illegal, under the express provisions of the Code.
In Scott v. Courtney, (7 Nev. 421,) which was an action to recover money won by plaintiff and lost by defendant at the game of faro, a game licensed by the statute of that state, the court held that the action could not be maintained. In the opinion the court said:
In Irwin v. William, 110 U.S. 499, 4 S.Ct. 160, the supreme court, in discussing the question whether dealing in futures by means of contract of sale or purchase, for purposes of speculating upon the course of the market, was valid, said 'Generally, in this country all wagering contracts are held to be illegal and void as against public policy;' citing Lewis v. U.S., 92 U.S. 513; Mason v. Bogg, 2 Mylne & C. 443; Putnam v. Russell, 17...
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...Code. Section 1667.3 states that "that is not lawful which is:... 3. otherwise contrary to good morals." An early case, Shain v. Goodwin, 46 F. 564 (C.C.N.D. Cal. 1891), involved notes on a debt for gambling with dice. The court cited Civil Code section 1667.3 to the effect that a contract ......