Thompson v. Samuels

• Decision Date: 23 May 1890
• Citation: 14 S.W. 143
• Parties: THOMPSON v. SAMUELS.
• Court: Texas Supreme Court

14 S.W. 143

THOMPSON v. SAMUELS.

Supreme Court of Texas.

May 23, 1890.

Appeal from district court, Bexar county.

Lane & Mayfield, for appellant. A. S. Chevalier, for appellee.

ACKER, J.

Ben Hilmbrower was indebted to J. R. Mahone, and Max Samuels owed Hilmbrower $100 for money lost at a game of cards. Hilmbrower drew a draft on Samuels in favor of Mahone for the $100. In settlement of the draft, Samuels executed and delivered his promissory note, dated March 1, 1887, payable to Mahone or bearer six months after date, with interest after due at 10 per cent. per annum. Mahone transferred the note by indorsement to John C. Thompson, before maturity, for a valuable consideration, without notice of any vice or illegality in the consideration for which it was given. Thompson brought suit on the note. Samuels pleaded that the consideration, for the note was illegal, being a gambling consideration. The trial in the justice's court resulted in a judgment for the defendant, from which plaintiff appealed to the district court, when a trial without a jury again resulted in judgment for defendant, from which plaintiff prosecutes this appeal.

It is contended that the court erred in rendering the judgment for defendant because, "the evidence having shown that the note sued on had passed into the hands of an innocent purchaser for value before maturity, and without any notice of an illegal consideration, the fact that it may have been given for a gambling debt would not relieve the maker thereof." If the suit was by Hilmbrower to enforce the payment of a note given by Samuels for money lost by gaming, there could be no doubt that the defense interposed by Samuels would be good; for we believe it to be settled by the decisions in this state that such contracts are voidable as between the parties thereto, and also between the maker and indorsee after maturity, and will not be enforced by the courts if the defense be properly interposed. Norvell v. Oury, 13 Tex. 31; Conner v. Mackey, 20 Tex. 747; Monroe v. Smelly, 25 Tex. 586; Donnelly v. Bank, 3 Civil Cas. Ct. App. 169. But it is contended by appellee that the note sued on was not only voidable, but void, and therefore incapable of enforcement even in favor of an innocent indorsee for value before maturity; and the authorities supra are relied on in support of this contention. It is true that, in several of the cases cited, it is said that such contracts are void; but, upon a careful examination of the decisions by the supreme court, we are induced to believe that the word "void" is used more through inadvertence than by design. If such contracts are void, then the illegality of the consideration may be made available as a defense under all circumstances, without regard to the innocence and good faith of the holder.

The case of Norvell v. Oury, 13 Tex. 31, was a suit by the payee against the maker of the note for money lost at a game of cards. The defense was pleaded, and sustained by verdict and judgment in the trial court. On appeal it was contended that, the contract being valid in the state where it was made, the court erred in charging the jury that, if they believed that the consideration for the note was money lost by gaming, they should find a verdict for defendant, it matters not where the contract was made. It was held that the charge was not error, because plaintiff had not pleaded that the contract was made at a place where the law recognized it as valid, and could not, therefore, have proved it. The court remarked, in concluding the opinion, that, "until the question is presented properly * * * for our decision, we will forbear the expression of an opinion whether a contract founded on a gambling consideration invalid by our own law can be enforced in our courts when entered into in a foreign state, where such consideration would be valid and lawful." The opinion does not hold such contracts void. The case of Conner v. Mackey, 20 Tex. 748, was a suit by the payee against the makers on a note given for a gambling consideration. The defense was pleaded, and sustained by the evidence and judgment. Justice WHEELER, in delivering the opinion of the court, uses this language: "The case of Norvell v. Oury, 13 Tex. 31, is an authority for holding that a note given for money won at cards is void by our law." We have just seen that the case of Norvell v. Oury did not so hold, but simply that the defense was available in that suit between the parties to the contract; and that case is not an authority for the use of the word "void" in Conner v. Mackey. We are, therefore, persuaded that Justice WHEELER used the word in the sense of "voidable," as many distinguished judges have done before and since his opinion in Conner v. Mackey. The case of Monroe v. Smelly, 25 Tex. 586, was a suit on a promissory note for money lost at a game of ten-pins, and transferred to the plaintiff by the payee after maturity. In delivering the opinion of the court, Justice BELL said: "The uniform tendency of the later decisions is to treat all gaming contracts and all wagers as utterly void." And again: "We think that, in the true spirit and meaning of the exceptions to the old rule, all idle wagers, and all...