Tuckett v. Herdic

• Decision Date: 13 December 1893
• Citation: 24 S.W. 992
• Parties: TUCKETT v. HERDIC.
• Court: Texas Court of Appeals

24 S.W. 992

TUCKETT v. HERDIC.

Court of Civil Appeals of Texas.

December 13, 1893.

Appeal from district court, Dallas county; R. E. Burke, Judge.

Action by Frank L. Herdic against F. M. Tuckett for money paid. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by LIGHTFOOT, C. J.:

This suit was brought by appellee to recover $1,834. It was claimed that in August, 1888, plaintiff below was engaged in selling pools and "Paris mutuals" on horse races at the race grounds of the Island Park Association in the city of Albany, N. Y., under the management of which association the races were being carried on. That during August, 1888, defendant purchased pools on said races amounting to $4,459.50, on which he realized $2,826.50, leaving a balance due plaintiff of $1,643, which plaintiff paid to the holders of the winning tickets. That plaintiff also paid for him, to the winners, $201 on "mutuals" on horse races. Judgment was rendered in the court below for plaintiff, from which this appeal was taken.

Dickson & Moroney, for appellant.

LIGHTFOOT, C. J., (after stating the facts.)

The first assignment of error which we deem it necessary to notice is as follows: "The court erred in not holding that the alleged contracts sued on by plaintiff were, under the evidence, void by the statute laws of New York, by the laws of which state they were governed, and in not sustaining defendant's plea that said alleged contracts were void on that account." The following statement under this proposition from appellant's brief substantially sets out the facts bearing upon this issue: "The transactions involved in this suit all occurred in New York. The contracts were made and were to be performed there, and are admittedly governed by New York law. The contracts are all wagering contracts. At this time the Revised Civil Statutes of the state of New York, pt. 1, c. 20, tit. 8, art. 3, provided as follows: `Sec. 8. All wagers, bets or stakes made to depend upon any race, or upon any gaming by lot or chance, casualty or unknown or contingent event whatever, shall be unlawful. All contracts for or on account of any money or property or thing in action so wagered, bet or staked, shall be void. Sec. 9. Any person who shall pay, deliver or deposit any money, property or thing in action upon the event of any wager or bet herein prohibited may sue for and recover the same of the winner or the person to whom the same shall be paid or delivered, and of the stake-holder or other person in whose hands shall be deposited such wager, bet or stake, or any part thereof, whether the same shall have been paid over by said stake-holder or not, and whether any such wager be lost or not. Sec. 10. The last two sections shall not be extended so as to prohibit, or in any way affect any insurance made in good faith for the security or indemnity of the party insured, and which is not otherwise prohibited by law, nor to any contract on bottomry or respondentia.' After the passage of the Revised Civil Statutes, from which the above is taken, a special statute, commonly known as the `Ives Pool Bill,' was passed May 26, 1887, by the New York legislature. This statute is entitled `An act prescribing the period in each year during which, and the terms under which, racing may take place upon the grounds of the associations incorporated for the purpose of improving the breeds of horses, and suspending the operation of certain sections of the Penal Code.' It provided: `Section 1. A tax of five per centum upon the gross amounts of the receipts for admission on race days, to race-tracks or grounds on which racing is had, owned, leased or conducted by a racing association, incorporated under the laws of the state of New York, for the purpose of improving the breed of horses, whether for the improvement of the thoroughbred or the trotting horse, shall be annually paid by such associations to the comptroller of the state of New York within fifteen days after the first day of December in each year.' `Sec. 4. The number of days upon which races may be conducted upon any race track or grounds, is limited to thirty days in each year, and during that number of days only races shall be authorized and allowed upon such tracks and grounds during which time the same may be kept open for the admission of the public, subject to the conditions and limitations prescribed by the acts or several amendments thereto under which the said associations were incorporated, and the provisions of sections three hundred and fifty-one and three hundred and fifty-two of the Penal Code shall not apply to the grounds of such associations during the number of days in each year during which the said races are hereby authorized; that such racing and all pool selling in this state shall be confined to the period between the fifteenth day of May and the fifteenth day of October in each year, and all pool selling shall be confined to the tracks where the races take place, and in the days when the races take place.' `Sec. 7. Any person who shall engage in pool selling at any time or place except as hereinbefore stated, shall be guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison, for a period of not less than one nor more than five years.' It also contained numerous other provisions not material to this case. It was agreed on the trial without formal proof that the Revised Statutes first above quoted were in full force in New York at the time of the transaction between plaintiff and defendant, except in so far as such provisions of the Revised Statutes were repealed, suspended, or superseded by the special statute of May 26, 1887, which was passed after the adoption of the Revised Statutes. The Island Park Association was organized under the laws of the state of New York in 1884, before the passage of the Ives pool bill. The...