Thornhill v. O'Rear

• Decision Date: 16 January 1896
• Citation: 108 Ala. 299,19 So. 382
• Parties: THORNHILL v. O'REAR.
• Court: Alabama Supreme Court

19 So. 382

108 Ala. 299

THORNHILL v. O'REAR.

Supreme Court of Alabama

January 16, 1896

Appeal from circuit court, Walker county; J. H. McGuire, Special Judge.

This was a statutory action of detinue, brought by the appellant W. L. Thornhill, against the appellee, Martin O'Rear, to recover the possession of a gold watch. The defendant pleaded the general issue, and upon this plea issue was joined. The facts of the case, and the respective contentions of the plaintiff and the defendant, are sufficiently stated in the opinion. The plaintiff requested the court to give to the jury the following written charge, and duly excepted to the court's refusal to give the same as asked: (1) "If the jury believe the evidence they must find for the plaintiff." At the request of the defendant the court gave to the jury the following written charges, and to the giving of each of them the plaintiff separately excepted: (2) "If the jury believe from the evidence that on Monday Thornhill consented that Jim O'Rear should deliver the watch to Martin O'Rear, and Jim O'Rear did then and there deliver the watch to Martin O'Rear, then their verdict must be for the defendant." (3) "Unless the jury believe from the evidence that Thornhill instructed J A. O'Rear not to deliver the watch to Martin O'Rear they will find for defendant." There were verdict and judgment for the defendant. The plaintiff appeals, and assigns as error the refusal to give the general affirmative charge requested by him, and the giving of the charges requested by the defendant. Affirmed.

T. L Sowell, for appellant.

Coleman & Bankhead, for appellee.

HARALSON J.

All the authorities hold, if money or property be placed in the hands of a stakeholder, to abide the result of a bet, or as a forfeit to bind parties to an illegal contract, while it remains in his hands, it may be arrested by the bailor before or after the happening of the event upon which the money is to be paid or the forfeiture depends. While in his hands, it is in transitu. He is not a party to the illegal contract and upon the revocation of his authority, the money or property remains in his hands as a naked trustee for the parties who placed it there. Wood v. Duncan, 9 Port. (Ala.) 227; Shackleford v. Ward, 3 Ala. 37; Lewis v. Bruton, 74 Ala. 317; Ball v. Gilbert, 12 Metc. (Mass.) 403; Fisher v. Hildreth, 117 Mass. 558; Vischer v. Yates, 11 Johns. 25. But, as was announced in McKee v. Manice, 11 Cush. 358, "the law seems to have been held by the authorities, that if after the event is determined, the loser pays the money to the winner, or permits by his assent or silence, the stakeholder, into whose hands the same has been placed, to pay it over to the winner, the loser cannot recover back the same. In such case, the principle is applied, that the law will refuse its aid to restore the money to the loser, both parties being in pari delicto." In Vischer v. Yates, 11 Johns, 25, it was said by Kent, C.J.: "If, after the determination of the event against the plaintiff, the money has been actually paid over to the winner with the plaintiff's consent, or perhaps without notice to the defendant to the contrary, the plaintiff could not have sustained an action against the winner to recover back the deposit;" citing Howson v. Hancock, 8 Term R. 575, in which Lord Kenyon said, that there is no case to be found where an action has been maintained to recover the money back again. All the decisions of this court are in line with these authorities, holding, as to suits upon executory contracts founded upon immoral or illegal considerations, they may always be defended on the ground of their invalidity; but that when executed, unless controlled by statute to the contrary, the law will not interfere, at the instance of either party to undo that which it was originally unlawful to do, for the reason, that being equally at fault, the law will help neither. Long v. Railway Co., 91 Ala. 522, 8 South, 706, and authorities there collected.

Section 1742 of our Code provides, that all contracts founded in whole or in part on a gambling consideration are void; and any person who has paid any money or delivered anything of value, lost upon any game or wager, may recover such money thing or its value, by action commenced within six months from the time of such payment or delivery. If the case before us falls within the influence of that statute, it would be an exception to the rule as to executed contracts to which we have just referred. Samuels v. Ainsworth, 13 Ala. 366. The facts are, that on Sunday morning, being in the presence of defendant and others, when the subject of raffling came up, the plaintiff stated, that "he believed he would raffle off his dwelling house and lot by chances," stating the proposed scheme, the chances to be 500, at a specified valuation. The defendant said he would take all the chances, to which plaintiff assented, and said he would make out a deed to the house and lot the next day, and deliver it to defendant, when he could pay him the money for it. Both parties agreed at the same time, to put up their watches in the hands of a stakeholder, as a forfeit, to stand by the proposition as made and accepted, which was done. This statement of facts shows that all...