This is a suit for the specific performance of a contract. In May, 1941, plaintiff, doing business as Gibson Specialty Company, entered into an agreement with defendant whereby Gibson Specialty Company was given the “sole and exclusive right for a period of 13 years to own and operate any and all pin-ball or other coin-operated amusement machinеs, in any and all places of business owned or operated by the * * * (defendant) and any and all other places of business the * * * (defendant) may in the future own, control or operate where such machines may be placed. ’ ’ The pin-ball games were installed by plaintiff and continued in operation in defendant’s restaurants until defendant put the machines in the back rоom and disconnected them.
The pin-ball machines have five balls which are propelled by a lever released by the player. The balls hit various bumpers which cause the maсhine to register numbers, the sums being automatically totaled. If a total over a certain designated amount is registered, the player wins the number of games designated and he can eithеr play free games or obtain cash for the number of games won.
When the cause cаme on for trial and at the close of plaintiff’s case, the defendant made a motion to dismiss plaintiff’s bill of complaint on the ground that the contract was against public poliсy. The motion was denied. Further testimony was taken which indicated that some of the machines wеre used as gambling devices.
The trial court entered a decree ordering the contrаct to be specifically performed and restraining defendant from using any coin-opеrated machines in *180 his place of business other than those furnished or provided by plaintiff until the terminatioil of the contract on May 19, 1954
Defendant appeals and urges that any contrаct which seeks the installation of these machines in any place of business is void as being against public policy.
In
Henry
v.
Kuney,
“ ‘Perhaps the most satisfactory rule that can be formulated, in the light of thе authorities, is the most obvious one, that where there is an element of chance in the оperation of the slot machine — where the one who plays the machine stands to win or lose money, trade checks, or prizes, by a chance, — the machine is a gambling deviсe and obnoxious to statutes directed against gaming or gambling devices.’ ”
In our opinion the pin-ball machines mentioned in the contract are gaming devices. The amusement given by the mаchine is the chance to get either money or free games. Plaintiff participated in the promotion of this illegal purpose by supplying and servicing the machines, and making allоwance or giving credit for money paid out as “winnings.” Under such circumstances we must hold the cоntract void as being against public policy.
Plaintiff urges that the failure of defendant to plead the illegality of the contract as an affirmative defense precludes him from relying оn such defense in order to void the contract.
In
Meek
v.
Wilson,
“It would be anomalous, indeed, if this court were required tо enforce a contract which the record discloses to be against public pоlicy and in contravention of the purposes and provisions of a statute. The rule that a contract against public policy is unenforceable is for the protection of the public at large, and this protection should not be lost because of the lack of diligence of a party to the suit. ’ ’
In the case at bar, the question of public policy wаs raised before the trial court and again in the briefs filed in the. Supreme Court. We hold that Court Rulе No. 23, § 3 (1933), does not preclude our consideration of this question under the facts of the case.
The decree of the trial court is reversed and a decree will be entered dismissing plaintiff’s bill of complaint. Costs to defendant.