133 Iowa 503 | Iowa | 1907
The petition alleged that Gus Pecaut and Len Lessenich wagered $50 each on a horse race, and deposited the same with plaintiff as stockholder; that thereafter Peeaut, claiming to have won the bet, demanded the money, which plaintiff declined to pay over; “ whereupon the defendants promised and agreed and contracted with the plaintiff that, if he would pay said money to Gus Pecaut, then, in the event that this plaintiff should be obliged to return any of said stake money to the said Len Lessenich, that they would repay him and save him harmless from all costs, liability, damages, and expenses; that plaintiff paid said money to Gus Pecaut; and that thereafter, on or about the 19th dáy of September, 1902, in a certain suit instituted by the said Len Lessenich against this plaintiff, it was adjudged by the court that the plaintiff should return the said Len Lessenich the sum of fifty dollars ($50.00) and $4.20 costs of said action,” which he accordingly did. To this petition defendants demurred on the grounds (1) that the alleged promise of Chas. F. Pecaut was within the statute of frauds, and (2) that the arrangement was a gambling contract or the consideration was the performance of such a contract.
If, then, the plaintiff was guilty of no wrong in receiving the money as stakeholder, it is not perceived upon what principle he should be denied the right to recover upon an -independent contract with these defendants. It is not alleged that he undertook to decide who was the winner or paid over the money to Gus Pecaut because entitled thereto. Indeed, the record contains no intimation of which one had the fastest horse, and we must assume that the judgment upon which the stakeholder paid Les
According to the petition the money was not turned over to defendants in pursuance of the wager, but of this agreement. The plaintiff was in lawful possession of the money. The promise to repay was not conditional on Lessenich being found to be the winner, nor could that question have been determined in the action by Lessenich against the plaintiff. As the money does not appear to have been paid to Pecaut as winner, it would seem that Lessenich might withdraw it whenever he chose, and, for all the record discloses, recovery by Lessenich from plaintiff may have been on this ground. In any event the agreement of plaintiff with defendants had no necessary relation to the misdemeanor committed in betting, and as held in Peck v. Briggs, 3 Denio (N. Y.) 107, a similar case, the maintenance of the action thereon “ is not against the policy of the statute, but the reverse. It disaffirms the wager and advances the policy of the law.” In Columbia Bank & Bridge Co. v. Haldeman, 7 Watts & S. (Pa.) 233 (42 Am. Dec. 229), the money was paid to ilaldeman as the winner of an election bet after the stakeholder had been notified of its withdrawal by the loser, and in an action on a bond executed by the winner to the stakeholder to' indemnify him for paying over the money, the court denied recovery on the ground that the stakeholder put himself in the place of the losing party, and, contrary to his wishes, paid the bet for him, and thereby assisted in accomplishing the unlawful object in making the wager. As the bond was in aid 'of the winner’s design to acquire the stake which the statute prohibited being put up, notwithstanding the withdrawal of the other party from the unlawful transaction, and as