Swaggard v. Hancock

• Decision Date: 25 April 1887
• Parties: BENJAMIN SWAGGARD, Plaintiff in Error, v. DAVID HANCOCK, Defendant in Error.
• Court: Kansas Court of Appeals

25 Mo.App. 596

BENJAMIN SWAGGARD, Plaintiff in Error, v. DAVID HANCOCK, Defendant in Error.

Court of Appeals of Missouri, Kansas City.

April 25, 1887

ERROR to Saline Circuit Court, HON. JOHN P. STROTHER, Judge.

Reversed and remanded.

Statement of case by the court.

This was an action by plaintiff for the recovery of various sums of money, lost by him on a certain foot race, amounting in the aggregate to the sum of nine hundred and fifty dollars. The answer was, first, a general denial, and, next, as follows:

" Defendant, further answering, says, that about the date mentioned in the said petition, to-wit: about June 21 1883, one Hill placed in the hands of defendant, a large sum of money, and requested defendant to make with it bets, for him, on a foot race, that day to be run by, and between, said Hill and one Baker, which is mentioned in the petition; that in pursuance of such request, the defendant, on that day made a bet with plaintiff, of one hundred and fifty dollars on said race, defendant betting that Hill would win said race, and plaintiff that Baker would win; that, at the time said bet was made, the said Baker was present, and proposed to plaintiff and defendant that said bet should be increased to two hundred dollars a side; that, the said Hill, being also present, desired to increase said bets, and, by agreement of said Hill and Baker and plaintiff and defendant, said bet was increased to two hundred dollars, the said Baker furnishing fifty dollars, and plaintiff one hundred and fifty dollars, upon the one side, and the said Hill furnishing fifty dollars and the defendant one hundred and fifty dollars, said money furnished by defendant being part of the money given him, as aforesaid, by said Hill; that all the said money was then placed in the hands of one James Randolph, as stake-holder, with instructions, that, if Baker should win the said foot race, the whole of said money should be paid to plaintiff, but, if Hill should win said race, said money should be given to defendant; that, afterwards, on the same day, plaintiff and defendant made another bet, of two hundred dollars each, on the same foot race, and placed the money in the hands of one John R. Cason, with the same instructions as were given to Randolph, as aforesaid; that, on the same day, defendant made another bet of one hundred dollars, with one John R. Cason, on said foot race, and placed the money in the hands of one Robert J. McMahan, as stakeholder, with instructions to pay all of said money to Cason, if Baker won said race, and to defendant, if Baker lost said race; that, afterwards, defendant was informed, and now believes, that said Cason made said bet for the plaintiff, and with the plaintiff's money; that, on the same day, the defendant made a bet, of a pair of horses, with plaintiff, against a pair of horses of plaintiff's, on the result of said foot race, and said horses were all placed in the hands of John R. Cason, as stake-holder, with the same instructions to him, in regard to said horses, as had been given said Randolph in regard to the money placed in his hands; that all said bets were made by the defendant, for said Hill, with the money of said Hill; that, in the bet of the pair of horses, as aforesaid, defendant put up his own horses, bet for Hill, Hill placing in the hands of defendant the value of said horses in money, to be retained by defendant in the event said horses should be lost; that, before said foot race was run, the plaintiff was fully informed, and well knew, that all the bets made by defendant, with him, either directly or indirectly, were made, by the defendant, for said Hill, and that Cason was also informed, at the time of making the bet with him, as aforesaid, that the money, bet by defendant as aforesaid, was the money of said Hill, and that said bet was made, by defendant, for said Hill.

And defendant says that plaintiff was informed, and well knew, that defendant would not bet any money or property, for himself, on said foot race; that said foot race was won by said Hill, and that said bets were lost by plaintiff, and that, afterwards, the plaintiff ordered the money and horses bet by plaintiff and defendant, as aforesaid, to be delivered to defendant, by said stake-holder, and said money and said horses were delivered to defendant, and that, directly afterwards, defendant delivered to said Hill, all money which had been placed in his hands by said Hill, including the money placed in his hands by said Hill, to secure him, or pay him, in case the said horses were lost. And also delivered to said Hill, one-half of all money won by him on bets made for him by defendant, including the money won on the bets aforesaid, and that the defendant retained the other half of said money, by agreement with said Hill, and that defendant purchased from said Hill, his one-half interest in the horses won as aforesaid, from plaintiff, the defendant being entitled to the other half interest in said horses, under an agreement with said Hill.

And the defendant further states that he made no bets with plaintiff on the result of said foot race, other than stated above; that, afterwards, on the same day as aforesaid, the plaintiff requested the defendant to return to him the said horses so won from plaintiff as aforesaid, and proposed to defendant that if he would return him said horses, the plaintiff would make no claim upon defendant for any money won from plaintiff on said foot race; but that, if the defendant would not return him said horses, then the plaintiff would immediately institute suit against defendant for said horses and said money; that the defendant, in good faith, believing himself fully and legally entitled to retain said horses and said money, so kept by him, and that he was not liable to plaintiff for any money lost by plaintiff on said foot race, and believing the plaintiff had no legal claim to any such money or property, denied plaintiff's right to demand the same, and refused to deliver plaintiff said horses; that the plaintiff thereupon proposed that the matter of difference between himself and defendant, in reference to said horses and said money, should be submitted to disinterested parties for adjustment, and the defendant, in order to avoid litigation, accepted said proposition, and that, after an ineffectual attempt to settle said matters of difference in that way, the plaintiff and defendant both fully understanding all of the facts, in order to prevent litigation about said matters, and for the purpose of forever settling all matters of difference between them, concerning or growing out of bets made upon said foot race, honestly and fairly agreed with each other that the defendant should deliver to the plaintiff the said horses, without suit, and that plaintiff should pay defendant the sum of one hundred dollars, and release defendant from all claims which plaintiff might have against him on account of any money lost by plaintiff on said foot race; that, in pursuance of said agreement, the defendant did deliver to plaintiff the said horses, which were of the value of about four hundred and fifty or five hundred dollars, and the plaintiff did pay to defendant said sum of one hundred dollars, and released defendant from all claims which plaintiff might have against him on account of any money lost by plaintiff on said foot race; and the defendant, having fully answered, asks to be discharged, with his costs."

The plaintiff filed a motion for judgment, notwithstanding the answer.

The court overruled the motion, and, the plaintiff refusing to plead further, rendered the following judgment:

" And now, at this day, came the parties to this suit, by their attorneys, and the motion heretofore filed by plaintiff, for judgment, is taken up and by the court, overruled, and, the plaintiff refusing to plead further, the court doth adjudge the answer of defendant as true, and a sufficient answer and defence to the several demands of plaintiff's petition. It is, therefore, considered, ordered and adjudged by the court, that the plaintiff take nothing by this writ; that defendant go hence, without day, and recover of plaintiff the costs and charges in this behalf expended, and that execution issue therefor."

No bill of exceptions was filed. The plaintiff has brought the case here on a writ of error.

C. B. BUCKNER and SAMUEL DAVIS, for plaintiff in error.

I. Plaintiff's motion ought to have been sustained, because the defendant's answer admits that defendant has received six hundred dollars of the plaintiff's money which defendant now holds, to plaintiff's use, and because said answer does not show any reason why plaintiff should not recover the same.

II. It is the settled law that there can be no com promise of a gaming or gambling transaction. Cato v. Hutson, 7 Mo. 146; Rev. Stat. Mo., 1834-5, pp. 71, 290; Hayden v. Little, 35 Mo. 442. There is no consideration to uphold the contract of compromise. Mullanphy v. Riley, 10 Mo. 493; Riley v. Kershaw, 65 Mo. 224; Burgs v. Koop, 48 N.Y. 225; Bliss v. Swartz, 65 N.Y. 444; 1 Parsons on Contracts [6 Ed.] p. 439, et seq.

III. There can be no agency to make wagering contracts or to carry on gambling transactions. Williams v. Wall, 60 Mo. 319; Humphrey v. McGee, 13 Mo. 436; Cato v. Hutson, supra; Hayden v. Little, supra; Willis v. Gammill, 67 Mo. 731.

IV. Plaintiff is entitled in this action to recover all sums won from him by defendant, under one general count for money had and received. Williams v. Wall, supra; Humphrey v. McGee, supra; Mason v. Waite, 17 Mass. 560.

BOYD & SEBREE, for defendant in error.

I. There was no exception saved to the action of the trial court in overruling the motion for judgment, nor bill of exceptions filed making such action of...