40 Conn. 332 | Conn. | 1873
The courts of this state have very seldom been called on to enforce claims of parties directly or remotely connected with wagering contracts. Such contracts are considered contrary to the principles of morality and against sound policy. Perhaps the only case to he found in our reports on this subject is that of Wheeler v. Spencer, 15 Conn., 28. There, as here, the plaintiff sought to recover from the defendant an amount of money deposited with him as a stake-holder. Judge Hinman, who gave the opinion of the court, after considering the questions involved, came to the following conclusion, (p. 32:) “ The doctrine to be extracted from all the cases is this; that money received by a third person, not a party to an illegal transaction, may be recovered back before it is paid over, as money had and received to the plaintiff’s use; and that where an illegal wager has been laid, either party may notify the stake-holder not to pay it over to the winner, and recover back the amount of his stake, and it is wholly immaterial whether the event upon which the money was staked has or has not happened when the party chooses to recall it.”
In the present case each party claimed that he had won the wager, a bet on a horse race, and each party claimed that the stake-holder should pay over to him the full amount deposited in his hands. The plaintiff made such demand of the stakeholder, and forbade his paying over the money to the other party, while he still retained it in possession. Previously to bringing the suit the defendant had paid over the money to the other claimant, taking from him a bond of indemnity.
The instruction given by the court below as to the law on these facts we think was correct. The point here insisted on by the defendant is, that though the plaintiff forbade the defendant from paying over the money, and avowed his purpose to bring a suit to recover it should such payment be made, still he demanded of the defendant the payment of the whole sum deposited with him. This precise question, it
Some other questions appear upon this record, but they arc rather questions of fact than of law. We perceive, no question of law, on which the court was requested to charge, where the charge was erroneous. As the matter stands, each party will have the money originally deposited by him in the, hands of the stake-holder, less the amount of fees and expenses to which he has been subjected. Should betting, and all other forms of gambling, always prove unprofitable, as they are always immoral, it would be no cause of regret. A new tidal is not advised.
In this opinion the other judges concurred; except Park, J., who dissented.
Park, J. This case hinges upon the following facts stated in the motion for a new trial:
“ It appeared that on the termination of the race, and on several occasions during the month following, the plaintiff*338 demanded of the defendant the money deposited with him, and forbade him to pay it.over to Howe, but did not demand merely the $250 placed by him in the hands of the defendant, but demanded the whole stake of $500; nor did the plaintiff inform the defendant that he repented of his bet, or that he rescinded the wager, but at all times until suit brought claimed that the whole wager belonged to him by racing rules. The plaintiff also offered evidence to prove, and claimed to hare proved, that he at various times threatened to sue the defendant, if he paid the money to Howe, and there was no evidence to the contrary.”
The court charged the jury as follows upon the question raised by these facts:
“ That if demand is made by a depositor of the stakes as a winner, and of all the stakes with no repudiation or revocation of the stakeholder’s authority as a stakeholder, he has no remedy if payment is made to the other party in good faith by the stakeholder. That if a party to a wager all the while assumes that the wager is still a wager, and confirms the authority of the stakeholder, and merely claims that ho has won and is entitled to the stakes as a winner, that is not a revocation in law. But if in addition to demanding all the money, the depositor or wagerer expressly forbids the payment to the other party of the money, and threatens to sue the stakeholder if he pays the other party, and the payment is made after he is so forbidden and threatened, the stakeholder is liable, unless from other facts the jury find the revocation of authority waived or repudiated, and consent to pay over given.”
The last part of this charge seems to me to be erroneous. The plaintiff claimed that the whole sum wagered belonged, to him by racing rules, and demanded the same of the defendant as his own property, and persisted in the claim at all times up to the bringing of the suit. It is true that he forbade the defendant to pay the stakes to his adversary in the race, and at various times threatened to sue him if he did so. But this must be considered in connection with his own ‘ claim and demand made at the same time. It was while he was claim
There is no intimation here of an intention to withdraw from the wager, but on the contrary a determination to stand by it, for the prohibition applies as much to the sum staked by Howe as to that staked by himself, and the threat applies as much to the payment of the one sum as to that of the other. Indeed the plaintiff claimed no right to the money staked by Howe, except on the ground that he himself was the winner of the race; and hence his persistency that the defendant should pay it to him in accordance with the authority conferred upon the defendant by Howe, when the money was deposited, to pay it to the winner. He considered Howe as not having revoked that authority any more than he had himself, hut as hound by his contract; and hence his claim continued to be made until after the suit was brought, when doubtless he was informed for the first time that the illegality of his contract would prevent his recovery of anything more than the money deposited by him. Up to that time his declarations and conduct were just what they would have been if the wagering contract had been legal and could have been enforced. He therefore never intended his threats and prohibition as a revocation of the authority conferred by him upon the defendant to pay his money to Howe, if it should be made to appear that Howe was the winner of the race instead of himself; and he would have regarded it as an insult if any one had so suggested. How could he have so intended ? lie knew that by so doing he would be abandoning the money of Howe, but instead of that, we find him as determined to obtain that money as he was to get hig own, and he brought
It cannot be said that this part of the charge is qualified by that which precedes it. The charge is divided into three parts. The jury are informed, in the first part, that a plaintiff would be remediless, if he claims the whole stakes and does not revoke the authority of the stakeholder. But no instruction is given as to what would be, or what would not be, a revocation. In the second part of the charge the jury are told of what would not be a revocation, to wit: that “ if
This part of the charge was doubtless based upon the authority of the case of Hastelow v. Jackson, 8 Barn. & Cress., 221. The facts of that case are not fully stated. It appears that the plaintiff and one Wilcoxon deposited the sum of $202 each, in the hands of the defendant, to abide the event of a boxing match between them. The battle was fought, and a dispute arose as to which of the parties was the winner. The question was left to two referees and an umpire to determine, and they decided in favor of Wilcoxon. Notwithstanding the decision the plaintiff claimed all the stakes, and threatened the defendant with a suit if he paid over the money to Wilcoxon. The money was paid over, and a suit was brought for the amount the plaintiff had deposited with the defendant. Upon the trial the defendant claimed, as matter of law, that the plaintiff could not recover on the ground that he had never given notice of an intention to rescind the illegal wager, but on the contrary had affirmed it by claiming the whole stakes and insisting that he was the winner of the contest. The learned judge overruled the claim of the defendant, and the plaintiff had a verdict. It does not appear how the court charged the jury, but the question was undoubtedly left to them as a question of fact, whether the plaintiff revoked the authority originally conferred upon the defendant to pay the money to the winning party; for otherwise there would have been nothing for the jury to pass upon, and the court would have
The facts of that case are materially different from those of the present one. It is difficult to see how the plaintiff, without nullifying the wagering contract, could have claimed any portion of the stakes, after the question involving his right to the money under the wager had been left to referees to determine, and a decision had been made against him. His claim was inconsistent with the continuance of the wagering contract, or the authority of the stakeholder to pay the money to the winning party, and would seem to be an abrogation of both. But here the decision of the judges of the race was in the plaintiff’s favor, and his claim and demand, his threats and prohibition, are all in harmony therefore with the wagering contract, and with the continuance of the stakeholder’s original authority, and appear to be a confirmation of both.
The court in Hastelow v. Jackson seem to take it for granted that a demand of the whole stakes was, under the circumstances, a demand in effect of only the sum deposited by the plaintiff; and they treat the case accordingly. It is well known that the English courts are accustomed to pursue a similar course where the facts are not in dispute, without intending to be understood as treating the question as one of law. But if in that case the court holds that in a case like the one under consideration, the question whether the plaintiff revoked the authority conferred upon the defendant to pay the stakes to the winner of the race, is one of law, and not one of fact, then I insist that the case in this respect
But it is said that our own court, in the case of Wheeler v. Spencer, 15 Conn., 28, speaks approvingly of this caso and refers to it as authority. But the question in Wheeler v. Spencer was whether an action could be maintained against a stakeholder under any circumstances, even when the money of the plaintiff had been demanded while in his hands, after the wagering contract liad been expressly rescinded. This was a grave question in Hastelow v. Jackson, but the court decided that an action would lie, and the court in Wheeler v. Spencer refers to the case as authority upon that question only.
I am of the opinion that the court erred in its charge to the jury, and that a new trial should be advised.