Wilkinson v. Tousley

• Decision Date: 01 January 1871
• Citation: 16 Minn. 263
• Parties: WILLIAM WILKINSON v. GEORGE M. TOUSLEY.
• Court: Minnesota Supreme Court

Page 263

16 Minn. 263

WILLIAM WILKINSON

v. GEORGE M. TOUSLEY.

Supreme Court of Minnesota.

Appeal by plaintiff from a judgment of the district court, Nicollet county.

E. St. Julien Cox, for appellant.

Swan & Bangs, for respondent.

BERRY, J.

Plaintiff and one John Farmer laid a wager upon the result of a horse-race, each depositing with the defendant, as stakeholder, the sum of $100, to be paid to the winner, plaintiff or Farmer, as the case might be. The race resulted unfavorably for the plaintiff, and after it had taken place, but before the money deposited had been paid over to Farmer, plaintiff notified defendant not to pay it over, and demanded the return of the sum of $100 deposited by himself, with which demand defendant refused to comply.

Plaintiff brings this action to recover said sum, and the case comes to this court upon appeal from the judgment entered upon an order sustaining a demurrer to the complaint, upon the ground that it did not state facts constituting a cause of action. In the view which we take, the foregoing are the only facts stated in the complaint material to be considered.

The first inquiry is, was the wager a valid contract? The English courts have held that at the common law contracts of wager were valid, unless affected by some special cause of invalidity; that they were not void qua wagers, but if made on indifferent subjects or questions, an action lay upon them against the loser. Good v. Elliott, 3 Term R. 693; Chit. Cont. 494; Ball v. Gilbert, 12 Metc. 399. But, as remarked by Mr. Chitty, "the courts have frequently reprehended these contracts, and expressed their regret that they have ever been sanctioned." Chit. Cont. 496, and cases cited. See opinion of Mr. Justice Buller and Lord Kenyon in Good v. Elliott, supra; Gilbert v. Sykes, 16 East, 156; Atherfold v. Beard, 2 Term R. 615 et seq.; Evans v. Jones, 5 Mees. & W. 82. In this country the courts have expressed their views upon the subject of wagers generally in very strong language.

In Amory v. Gilman, 2 Mass. 6, which was an action upon a wagering policy of insurance, Parker, J., says: "It would seem a disgraceful occupation of the courts of any country to sit in judgment between two gamblers in order to determine which was the best calculator of chances, or which had the most cunning of the two. There could be but one step of degradation below this, which is that the judges should be the stakeholders of the parties." See, also, Ball v. Gilbert, 12 Metc. 399.

In Collamer v. Day, 2 Vt. 146, which was an action founded upon a bet that a certain chaise was the property of A. B., the court say: "This is probably the first action that has ever called upon a court in this state to sanction such a contract of betting. The judges of the courts in England have expressed their regret of late years that such transactions ever received the sanction of a court of justice, but they yield to the force of law, which they consider settled by a train of decisions extending down from remote antiquity. We feel no such embarassment, nor are we willing to transmit any such embarrassment to our successors, nor diffuse into society the influence of a rule so demoralizing as would be the sanction of such a contract. * * * The good morals of society require that no encouragement should be afforded to the acquisition of property otherwise than by honest industry. Time might be occupied in seeking occasions to take advantage of the unwary, and acquiring a skill to take such advantage, which ought to be devoted to better purposes." The court accordingly refused to recognize the bet as a valid contract. See, also, West v. Holmes, 26 Vt. 534.

In Perkins v. Eaton, 3 N. H. 155, Chief Justice Richardson says: "On the whole it is not to be doubted that at the common law an action might, under certain circumstances, be maintained for a wager; but the question is whether the common law on this subject has ever been adopted in this state. It is not known that an action of this kind has ever been before brought in this state; and this circumstance seems to indicate a general impression among the members of the bar that such an action cannot be maintained, for wagers have certainly not been uncommon among us. We are not precluded, then, by adjudged cases from adopting the rule of the civil law, and holding that a wager upon a subject in which the parties have no interest is a void contract. Many English judges have regretted that the same rule has not been adopted in that country, and we have no doubt that the better part of the community here would regret that any countenance should be given to a wager of this kind in our courts of justice. We have come to the conclusion that the rule of the common law on this subject has not been adopted in this state, and that a wager upon a subject in which the parties have no interest is not a valid contract."

And in Hoit v. Hodge, 6 N. H. 104, where the wager was upon a horse-race, the same judge says: "The wager in this case was upon a matter in which neither party had any interest beyond what was created by the wager itself;" and it was held not enforceable. See, also, Clark v. Gibson, 12 N. H. 387, in which Gilchrist, J., speaks of wagers as "gambling transactions." See, also, Rust v. Gott, 9 Cow. 175, note a.

In Wheeler v. Spencer, 15 Conn. 30, Hinman, J., speaking of wagers, says: "The general understanding of the profession * * * has been that they would be held to be illegal as being contrary to the principles of morality and against sound policy."

In South Carolina, in Laval v. Myers, 1 Bailey, 486, it is held that all wagers are unlawful, and not to be recovered in the courts of justice.

And in Rice v. Gist, 1 Strobh. 84, O'Neall, J., in delivering the opinion of the court, says: "If the judge had charged the jury that the bet (which was as to whether certain sales amounted to $7,000 or not) had an immoral tendency, I should have entirely agreed with him; for every bet of this, or any other kind tends directly to beget a desire of possessing another's money or property without an equivalent. Men acted on by such influences may easily become gamblers; and then the road to every other vice is broad and plain." And he proceeds to speak of the probable tendency in the case before him as "an immoral tendency, hateful, horrible, and deformed, and one against which the law should as sedulously guard as against any other. I agree fully," he adds, "and so do a large majority of the court, in the opinion of the recorder, as expressed in Laval v. Myers, 1 Bailey, 486, that all wagers are unlawful, and not to be recovered in the courts of justice. * * * No one can read the English books without feeling...