Craig v. Andrews

7 Iowa 17 | Iowa | 1858

Stockton, J.

I. It is objected to this bill of exceptions, that the fact of the refusal of the court to sign and allow it, should appear by the certificate of the judge, and not alone by the statements of the bystaiiders. We think, however, the bill of exceptions is sufficient. The refusal of the judge to sign and allow it, may be shown by the certificate of the attorneys. The judge may refuse to give his certificate of the fact, as he refused to allow the exceptions, and the party would thus be left without remedy.

II. The evidence of Foster was improperly admitted, and should have been excluded, on the motion of Andrews. Iiis interest in having a judgment rendered against Andrews, was made to appear beyond controversy. Andrews’ liability to plaintiff was upon the note, while Foster’s was upon the indorsement. Andrews had pleaded that the note was given upon an illegal consideration, and was therefore null and void. The defense of Foster, if any was made, does not appear. He w'as not, however, defending against the note, .and his interest was, in this respect, identical with that of plaintiff', to overthrow the defense set up by Andrews. The relations of the two defendants were antagonistic; and it being shown by his own admission, that if the plaintiff did not recover against Andrews, he would himself have to pay the amount of the note to plaintiff', the motion to exclude his testimony as to the consideration of the note, should have been sustained. Hickman v. Sloan, 2 Iowa, 64.

The statute provides, that “all promises, agreements, notes, bills, bonds or other contracts, mortgages, or other securities, where the whole or any part of the consideration thereof, is for money or other valuable thing, won or lost, laid, staked or bet, at or upon any game of any kind, or on any wager, are absolutely void and of no effect.” Code, sec. 2721. The court rightly charged the jury, that “if the consideration was in whole or part intended hy the parties as a bet, or wager, it was illegal and void.” But it may well be doubted, whether the jury were not misled by the qualification given to this instruction by the court, in its direction, that “ if the note was given for a horse, payable upon the election -of Mr. Buchanan, there was a legal consideration, and the contingency did not destroy the plaintiff’s right to recover.” The issue between the parties was, whether the note was given upon a wagering contract. The court neither determined this question itself, from the language of the instrument, nor left it to be determined by the jury from the evidence, hut left it to be inferred by its direction, that whether given upon a wager or not, if given for a horse, there was a sufficient consideration, and the contingency expressed upon which the note was payable, did not show a wagering contract, nor impair the plaintiff’s right to recover.

The fact that a note is made payable upon a contingency, does not necessarily show that it is a wagering contract, nor defeat the plaintiff’s right to recover; but it is equally true that a note may be given for a horse, and yet the agreement between the parties may he such as to make it clearly a wagering contract, and consequently void.

If the note contained evidence upon its face, that it was void, as having been given in pursuance of an illegal contract, the court should have so decided, and should have excluded the note from being given in evidence.

In Danforth v. Evans, 16 Vermont, 538, the suit was upon the following instrument of writing: “October 16th, 1810. For value received, I promise to pay S. Danforth or order, fifty dollars, on the day that Martin Van Burén is re-elected president of the United States. Eli Evans.”

There was evidence tending to show', that the note was given for a horse, worth at the time twenty or twenty-five dollars, and that the note was only to be paid upon the happening of the contingency therein named. The court held, that “ if the note had not sufficient on its face to render it void, evidence aliunde, must he introduced to show the nature of the contract, and the consideration for which the note was given. This is the ordinary mode of attacking a note having nothing suspicious on its face.” It is farther said : “We do not hesitate to regard the note, after the finding of the jury, as having been given upon a wagering contract, and void. It possesses all the elements that are necessary to constitute any wager. In communities where betting is prohibited by law, men have always resorted to some expedient to evade the law. Nut a wager, though called by any other name, is none the less immoral and opposed to law — it is a wager still.”

The evidence as to the consideration of the note, is not made part of the record, and we are unable to say whether it Avas given for a horse or not. Nor will we undertake to decide, from the face of the note, whether or not it was given upon a wager. This question, we think, should be left to the jury, with the direction, that if they found it was given upon a Avager, or if the Avhole or any part of the consideration was for money or property laid, or staked, upon a bet or wager, the note was absolutely Amid, and could not be recovered for against the maker, even in the hands of an innocent purchaser. '

The judgment of the district court is reversed, and a new trial ordered.