St. Louis Fair Association v. Carmody
| Citation | 52 S.W. 365,151 Mo. 566 |
| Parties | St. Louis Fair Association v. Carmody et al., Appellants |
| Decision Date | 12 July 1899 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.
Reversed and remanded.
Chester H. Krum and Frank K. Ryan for appellants.
(1) A common gaming house is one which is open to persons generally for purposes of gambling. Rice v. State, 10 Tex 545; Lockhart v. State, 10 Tex. 275; State v Mosby, 53 Mo.App. 571; People v. Weithoff, 51 Mich. 213. (2) On the facts pleaded in the amended answer, the grand stand and appurtenances are a common gaming house, for betting upon horse races is gambling. Swigert v. People, 154 Ill. 284; Bodinger v. Com., 35 S.W. 552; Sharp v. Com., 35 S.W. 553; Shropshire v. Glasscock, 4 Mo. 536; State v. Metcalf, 65 Mo.App. 681; Swaggard v. Hancock, 25 Mo.App. 596; State v. McMullins, 35 Ia. 199; Shaw v. Morley, L. R. 3 Exch. 137; Galloway v. Ularies, L. A. 8 Q. B. D. 275; Cheek v. Com., 79 Ky. 359; Bows v. Fenwick, 9 L. A. C. P. 339; People v. Weithoff, 51 Mich. 213. (3) A contract to furnish refreshments for use in a common gaming house can not be enforced, especially where the proceeds of the contract go toward the maintenance of the unlawful establishment. Ashbrook v. Dale, 26 Mo.App. 649; Friend v. Porter, 50 Mo.App. 89; Downing v. Ringen, 7 Mo. 585; Hayden v. Little, 35 Mo. 418; Sprague v. Rooney, 104 Mo. 358; Bick v. Seal, 45 Mo.App. 475. (4) Any contract made in consideration of an act forbidden by law is absolutely void, and the illegality of the contract will constitute a good defense at law, as well as in equity. Downing v. Ringen, 7 Mo. 585. The keeping of a common gaming house being a misdemeanor, all participants are principals in the offense, the patrons no less than the keeper, and those who contract with the keeper for refreshments of the patrons are themselves particeps criminis with such keeper. On neither side can such a contract be enforced. R. S. 1889, sec. 3811; Sprague v. Rooney, 104 Mo. 358; Friend v. Porter, 50 Mo.App. 89; Kiley v. W. U. Tel. Co., 39 Hun. 158; Bryant v. W. U. Tel. Co., 17 F. 825.
Boyle, Priest & Lehman and Valle Reyburn for respondent.
(1) Races in themselves, even though prizes are paid to the winners, are not illegal. Harris v. White, 81 N.Y. 532; Alvord v. Smith, 63 Ind. 58. (2) The sale of refreshments to people who attend races is not illegal, and consequently the sale of the privilege to furnish such refreshments, being in no wise dependent upon the gambling alleged to have been done, is a lawful transaction. Michael v. Bacon, 40 Mo. 474; Hatch v. Hanson, 46 Mo.App. 323; Morgan v. Graff, 4 Bab. 524; Delavina v. Hall, 65 N.H. 27; Bryson v. Haley, 38 A. 1006; Armfield v. Tate, 7 Iredell 258; Nat'l Dist. Co. v. Cream City Co., 56 N.W. 864; Bonsack Machine Co. v. Smith, 70 F. 383. (3) To compel payment of the balance due from defendant does not involve the enforcement or the recognition of any illegal stipulation. Brooks v. Martin, 2 Wall. 70; Planter's Bank v. Union Bank, 16 Wall. 483; Hatch v. Hanson, 46 Mo.App. 323.
This is a suit on a bond. The petition alleges that on May 1, 1896, plaintiff sold to defendant Carmody the privilege of selling refreshments in its grand stand for a period of forty-nine days, beginning May 6, 1896, for the sum of $ 16,709, to be paid in stated installments during that period; that the bond in suit was given to secure those payments; that Carmody paid $ 10,264.43, leaving a balance of $ 6,444.57 unpaid, for which this suit is brought.
Defendants answered admitting the execution of the bond, and pleaded certain facts by way of avoidance, whereupon the plaintiff moved the court for a judgment for the amount sued for on the pleadings, which motion the court sustained, and rendered judgment accordingly, from which judgment the defendants after proper course, appealed to this court.
The question on this record is, taking the defendants' answer to be true, is the plaintiff entitled to a judgment? That portion of the answer to be considered is as follows:
"Further answering, the defendants state that the said plaintiff ought not to have and maintain its action, for that the contract first alleged in said petition and the writing obligatory therein declared on were, and are, based upon an illegal consideration, and are, and were, at the time of their execution, void and of no effect, in that, at the time when the said contract and said writings obligatory were executed and continuously down to the expiration of the period of time by them covered, the said plaintiff was engaged in maintaining, operating and controlling a race track in the city of St. Louis, on which said race track, as part thereof, was, and is, situated the grand stand specified in said petition; that on said race track during the said period there were conducted by said plaintiff, from day to day, Sundays excepted, horse races for purses offered and paid to the winners by said plaintiff; that upon the said race track so operated, controlled and conducted by said plaintiff, persons were admitted and permitted by said plaintiff to attend for the purpose of gambling and betting upon the result of the said horse races so conducted; that said persons attended upon the said horse races in large numbers and gambled and bet upon said races large sums of money with the consent, connivance and procurement of the said plaintiff; that the furnishing of liquors, refreshments and cigars by the defendant, Patrick J. Carmody, under the said agreement first alleged in said petition, was contracted for by the said plaintiff by reason of the contemplated attendance of said persons for the purpose and with the expectation of gambling upon the said race track of said plaintiff, and that such refreshments, cigars and liquors, as were furnished by defendant, Patrick J. Carmody, under the said agreement, were so furnished by reason of the attendance upon the said race track of large numbers of persons for the purpose of gambling and betting upon the said races there maintained and conducted; that the proceeds of the privilege to sell liquors bought by said defendant Carmody were used by said plaintiff in making up and paying the purses raced for upon it, said race track as aforesaid, and in defraying the expenses of conducting its race track; that all necessary appliances, apparatus, records and paraphernalia for betting and gambling were provided and permitted to be used for such purposes by the said plaintiff upon its race track, to wit, in the same grand stand and houses and buildings appurtenant thereto; and that the grand stand of the said race track and the appurtenances thereunto belonging constituted and were during the period covered by said agreement, a common gaming house and public nuisance conducted, maintained and permitted by the said plaintiff; in that the said plaintiff in a building covered with a roof and inclosed at the sides, adjacent to, and connected with said grand stand, provided stands and booths for the occupancy of gamblers, book-makers and pool-sellers, who occupied the same and offered odds upon the races run on the race track of plaintiff and accepted bets made thereon by the said persons attendant as aforesaid upon the said races; that the privilege of making books, by which is meant taking and receiving bets by the said gamblers occupying said booths and stands, was sold by the plaintiff to some gambler, or gamblers, who in turn sublet the privilege to many other gamblers, and the proceeds of the sale of said privilege and of the privileges granted said Carmody and others were used by said plaintiff in making up and paying said purses and defraying the expenses of its said race track; and that the said attendants upon the said race track assembling there as aforesaid for the purpose of gambling, bet against the said book-makers, who posted odds at which such bets were taken upon a board, and device, and erected by them upon their respective stands and booths, and who recorded said bets upon sheets and books kept by them and upon tickets issued by them to the said respective betters; the said book-makers and gamblers thereby, by reason of the premises aforesaid, setting up, maintaining and conducting gambling devices upon the said premises of said plaintiff with its knowledge, connivance, participation and consent; and the said agreement and said writings obligatory sued on herein were made and executed with reference to and by reason of the said unlawful transactions had and to be had upon the said premises of said plaintiff, and the said sum and sums of money agreed by said defendant Carmody to be paid, and such sum or sums as were paid by him under said contract for the privilege aforesaid were necessary to be used, and as paid were used by the plaintiff in supplying, operating and maintaining the gambling devices hereinbefore specified, without which said devices, appurtenances and paraphernalia, the said business of gambling could not have been carried on or maintained by said plaintiff; that the privilege so acquired by said Carmody is the same as is set forth in said petition, and the money agreed to be paid by said Carmody was in connection with and for the maintenance of said common gaming house as aforesaid, and is the same consideration that is mentioned in said contract referred to in said petition."
There were other facts pleaded by defendants, but the counsel on both sides have limited their discussion to the question as to the sufficiency of the facts stated in that portion of the answer above quoted, and we will follow their suggestion.
Under the law of this State it is not unlawful to keep a race track, and to induce horse races thereon by...
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