Lewis v. Miner

| N.Y. Sup. Ct. | May 15, 1846

By the Court, Bronson, Ch. J.

With the exception of contracts of insurance, bottomry and respondentia, all wagers made to depend upon any lot, chance,.casualty, or unknown or contingent event, are unlawful: and all contracts for and on account of any money, property, or thing in action, which may be wagered, bet, or staked, are void. If the money or property has been paid, delivered or deposited, the owner may sue for, and recover it, whether the wager has been lost or not. (1 R. S. 662, § 8 to 10.) The statute extends to cases where the money or property is paid or delivered after the wager or game has been decided, as well as to those where the money or property was deposited beforehand with a stakeholder. Both classes of cases are equally within the language of the statute; and they are also within the mischief which the legislature intended to suppress. It is a common thing that the money or property is not paid or delivered until after the game or bet has been decided ; and to hold that the loser cannot recover in such a case, would go very far towards defeating the policy of the statute. It is true, that by the payment or delivery, the party consents to part with his property; and at the common law he would have no remedy to recover it. But the statute nullifies the consent, and gives him a remedy by action.

Although the agreement to game or wager is void, the subsequent delivery of the property cannot be regarded as a voluntary gift. It is a payment made in pursuance of an illegal contract; and, upon principles of public policy, the legislature has provided that the money or property may be recovered back.

Thus far I see no difficulty in the plaintiff’s case. But there is an objection which cannot, I think, be got over. There is no proof that the plaintiff’s cutter was ever delivered to the defendant, or that he has had it in his possession or under his control for a single moment. All the evidence tends to a different conclusion. The plaintiff had the possession at the time the bet was made, and he has had it ever since. How then, can he maintain this action of trover? The argument is, that the sale of the cutter by the defendant was a wrongful act, which affords sufficient evidence of a conversion of the property to enable the plaintiff to maintain this action. That might, perhaps, be so, if the sale had been made to a third person ; though in that case, the plaintiff would not be entitled to recover the full value of the property, so long as his possession and enjoyment remained wholly undisturbed. But here, the sale was made to the plaintiff. He was a party to the transaction, and cannot complain that it was a wrongful act. The sale was made with the plaintiff’s consent and approbation; and still more—at his request; and he cannot now turn round and say it was a tort, upon which he can found an action of trover. Whatever a man may do with my property—whether he sell or pledge it, or dash it in pieces— if he have my full consent at the time, I cannot afterwards treat him as a wrongdoer. The principle is so plain that it needs only to be mentioned.

The statute does not come to the plaintiff’s aid upon this point. That only relieves him from the consequences of a consent involved in the delivery of the property. Here, there has been no delivery. If the contract of purchase and sale was void under the eighth section of the statute, it was void as to both parties, and in toto. If the consent of the vendee was a nullity, so also was the consent of the vendor. In short, there was no sale. If there was no sale, then there is nothing which looks like a conversion of the property. And if there was a sale, it was made with the full consent of the plaintiff; and he cannot turn it into a tort, and maintain trover.

I have considered the transaction between the parties after the election, as it is spoken of in the case. It is called a sale; but it might as well have received another name. By the original agreement, the property was not to be delivered until after the election. When that event had passed, the parties met and agreed that the defendant had won, and the plaintiff had lost the wager. The question then was. whether the cutter should be delivered to the defendant, or whether he should relinquish his claim upon it for a sum of money. The latter course was agreed on by the parties, and the plaintiff paid $15, and kept his cutter. He has never parted with the property, nor has the defendant ever had it, for a single moment. This is only another mode of showing that this action of trover cannot be supported. Whether the plaintiff can recover the fifteen dollars, in an action for money had and received to his use, is a question which need not now be considered.

Judgments reversed.