11 Ind. 59 | Ind. | 1858
The appellee, who was the plaintiff, sued. Frybarger to recover a certain amount of money deposited with him as a stakeholder upon a wager on the result of the state election for governor, on the 14th of October, 1856. The issues were submitted to a jury, and there was a verdict for the plaintiff, upon which the Court, having refused a new trial, rendered judgment.
The facts are substantially these: The plaintiff, on the 20th of September 1856, deposited with the defendant, as a stakeholder, 1,000 dollars, as a wager on the result of the state election for governor, at which election Ashbel P. Willard and Oliver P. Morton were the opposing candidates, against 500 dollars then deposited with defendant as such stakeholder, by one Robert Watt. When the several sums were thus deposited, the plaintiff and Wattwere both present, and each in the presence of each other directed the defendant, if Willard should be elected, to pay the entire amount, 1,500 dollars, to Watt, but in case Morton was elected, he, the defendant, was directed to pay the same to the plaintiff. After the election had occurred, and, as the result, it had been determined and become known that Willard had been elected, viz., on the 17th of October, 1856, the plaintiff stated to the defendant that he wished him to wait,
It was proved that, after the money had been so paid over, and about the first of November, the plaintiff directed the defendant not to pay over the 1,000 dollars, and that afterwards, and before the commencement of this suit, he demanded the same of the defendant.
The evidence being closed, the Court, of its own motion, gave the following instruction: “If the jury believe the evidence, they must find for the plaintiff the amount by him deposited, with interest from the time he demanded it of the defendant.”
.Upon the subject of the inquiry involved in this instruction, we have no statute. Hence, its correctness must be tested by common-law rule. And in accordance with that rule, it is well settled that wagers upon the result of an election are against the principles of sound policy, and, consequently, illegal. Bunn v. Riker, 4 Johns. 426. And being thus illegal, Courts will not aid the winner in the recovery of the wager from the loser, nor will they, if the loser has voluntarily paid the wager, entertain an action in his favor to compel the winner to repay it. Yates v. Foot, 12 id. 1. In the case just cited, it was ruled that, while the contract remains unexecuted, the principal may recover his money out of the hands of the stakeholder. If, however, the hazard has ceased, and the wager has been lost or won according to the contract, a very different relation
How, then, stands the case at bar. After the result of the election had become known, the plaintiff requested the stakeholder to wait and not pay over until he could see the winner, as he wanted him, in lieu of the amount won, to receive certain judgments which were good, but slow. This, it is said, was enough to put the defendant on his guard— to induce him to believe that if he paid the money without further directions, he did so at his peril. We think otherwise. The terms of the request, in effect, affirmed the contract, and [the plaintiff] simply desired the privilege of discharging it by the transfer of certain judgments. At all events, there is nothing in the request to delay payment, in any respect calculated to induce the conclusion that the plaintiff thereby intended to avoid the fulfilment of his contract. And the defendant having paid over the money to the winner, in the absence of any express direction not to do so, is not, in view of the facts stated in the record, liable in this action
Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.
See Woodcocks. McQueen, ante, 14.