23 Or. 416 | Or. | 1893
This was an action to recover the sum of five hundred and sixty dollars deposited with the defendant as a wager on the result of a foot race. The case was tried without the intervention of a jury, and the material facts as found by the court are : That the plaintiff deposited with the defendant the sum of five hundred and sixty dollars in gold for the benefit of one George Grant, and as a wager upon a foot race which said Grant and one Anderson were to run the next day at a place agreed upon; that at the time the said money was so deposited, it was understood by Grant and the defendant Taylor and the plaintiff that the money should be paid back to the plaintiff on his demand for the same at any time before the race should be run, which the defendant agreed to do; that before such race was run the plaintiff on two occasions demanded said money of the defendant, who refused to pay it back, but pretends that said race was run, and that Anderson was the winner, to whom he paid the money before the commencement of this action; that the race agreed to be run was not run, but that
1. The first contention for defendant is, that wagers or wagering contracts upon indifferent subjects are valid in this state by force of the common law, except when prohibited by statute. There can be no doubt that wager contracts upon indifferent matters were valid at common law: Goode v. Elliott, 3 T. R. 693; Jones v. Randall, 1 Cowp. 37; Da Costa v. Jones, 2 Cowp. 734; Bunn v. Riker, 4 Johns. 427 (4 Am. Dec. 292). But all wagers which tended to a breach of the peace, or to injure the feelings, character, or interests of third persons, or which were against the principles of morality, or of sound policy, were void at common law: 4 Kent’s Com. 466; Greenhood, Pub. Pol. 226. And all wagers in contraven
2. The next contention for the defendant is, that the alleged agreement was corrupt, illegal, and criminal in this, that it was in advance “fixed” that one of the parties should win, and that certain persons should lose their money; in other words, that the agreement had in contemplation “a job race.” This, it is claimed, put the
In Edgar v. Fowler, 3 East. 225, Lord Ellenburg said: “In illegal transactions the money has always been stopped while it is in transitu to the person entitled to receive it.” As Lord Justice Mellish said: “To hold that the plaintiff is entitled to recover does not carry out the illegal transaction, but the effect is to put everybody in the same situation as they were before the illegal transaction was determined upon, and before the parties took any steps. If money is paid or goods delivered for an illegal purpose, the person who has so paid the money or delivered the goods may recover them back before the illegal purpose is carried out; but if he waits till the illegal purpose is carried out, or if he seeks to enforce
3. It only remains to apply these principles to the facts. These show that the plaintiff was cognizant that the race had been fixed in advance — that one of the parties should win, and that certain other persons should lose their money — that it was a bogus race, and the arrangement based upon it corrupt, and designed to cheat and defraud the other parties; but at the same time, they show that he repented and repudiated the transaction before it was consummated, by demanding the return of his money the evening of the day before the race, and on the day of the race, but before it was to come off, and that the defendant refused to pay it back, and that he afterwards forbade the defendant to pay said money to any other per
There was no error, and the judgment must be affirmed.