85 Tenn. 572 | Tenn. | 1887
This suit was brought on the 4th of April, 1882, to recover various amounts lost by complainant on certain wagers made with defendants. The several amounts, with dates of their deposits, are set forth in the bill, together with dates of the closing of the “deals” whereby the loss occurred.
All the deposits, except one for $600, were made within ninety days of the commencement of the suit, and the “deals” referred to by which all the loss was occasioned were within’ ninety days.
The individuals sued were Joseph W. Horton, Olías. Sulzbaclier, W. C. Graves, Thaddeus II. Mason, and Thos. Parkes, incorporators of the City Produce Exchange. The bill alleged, and the proof
There were several defenses interposed: First, that the corporation was alone liable; that, being chartered for an apparently legal purpose, the incorporators could not be held individually liable for illegal acts of its managers or officers.
There is nothing in this defense. The facts justify the finding that the incorporation was but a cloak used to cover the illegal acts contemplated in the organization and done as a business, and in such case the form of the transaction is disregarded, and the intent and substance ascertained, and liability fixed for the thing done, without respect to the pretense under which it was attempted to be concealed. Nor, in this connection, it may be properly stated, is it material that defendants
The second defense interposed was (as to one of the transactions, a deposit of $600 in December, 1881) the statute of limitations of ninety days. New Code, § 2440. The language of that section is as follows:
“ Moreover, any person who has paid any money or delivered anything of value lost upon any game or wager may recover such money, thing, or its value by action commenced within ninety days from the time of such payment or delivery.”
If the money was lost when deposited, the item referred to could not be recovered, for more than ninety days had elapsed from the date of deposit until the commencement of the action; but this amount was not lost until the close of the “deal” as to it on the 8th of February, 1882; and we hold that the statute did not operate until date of the loss, as before that time it was merely deposited to abide the result of the wager, and not appropriated by or paid to defendants in consequence
It is also insisted that there can be no recovery in this case because there was no “wager upon a game,” and that this is essential to constitute the “wager” referred to in the statute.
The terms of the statute answer this position. It is not a “wager upon a game” for which recovery is authorized. The plain language is that money lost upon any “game” or “wager” may be recovered. Mr. Bonvier defines a wager to be “a contract by which two parties or more agree that a certain sum of money or other thing shall be paid or delivered to one of them on the happening or not happening of an uncertain event.” If for the word used in the statute this definition was substituted, there could be no doubt of the right of recovery. It would be a strange construction by which the statute should be deprived of its' effect by refusing assent to the definition of its terms. Contracts of this character are clearly provided for in letter and spirit by the words used, and are obviously within the mischief intended to be suppressed.
This is a sufficient answer without pursuing the argument made in this connection ■ by defendants’ counsel that a wager is not an indictable offense within the meaning of the gaming law under which formerly betting on horse-races and elections was not, and, therefore, money lost on a wager is
The first of these cases is an indictment sustained for gaming against Bell for receiving money in “ a scheme denominated a gift enterprise,” and the last is another held good against Eubanks for taking money as consideration for sale of a prize candy package.
It matters not what the unlawful device is upon which the money is received as a hazard, it is gaming. The argument of counsel that the wagering established in this record was not gaming before the Act of 1883 (Ch. COLL), and that this act was a legislative declaration to that effect, is not sound for two reasons: First, because that act did not declare that the dealing in futures, when neither party intended a real purchase or sale, was gaming, for it always had been so. It declared that thereafter such dealing should be gaming if either of the contracting parties, dealing simply for
Before the passage of this law such a transaction as dealing in futures, of itself, was not unlawful, nor was it unlawful unless it was the intent of both parties that there should be no real purchase or delivery. This act was intended to make it unlawful if either had no intention of effectuating a real purchase or sale. It was designed to suppress the evil of dealing in futures, and limit such operation to bona fide sales and purchases by those who wished to sell to those who wished to buy. Tn making the seller responsible for the intent of the buyer, and the buyer responsible for the intent of the seller, it intended to suppress gambling by confining the business of buying and selling for future delivery in such limits as would practically preclude the possibility of it.
The bona fide dealer can still operate, but he cannot do so upon any terms which do not protect the community against the pernicious and ruinous speculation in the rise and fall of prices. He is obliged, for his own safety — as this act provides extreme penalties — to avoid the speculator, and buy only for the legitimate demands of necessity and trade.
The unreported case of Wallace v. The State is cited as an authority to show that this Court, in discharging the defendant under commitment for
“ The Judge charged the grand jury that dealing in futures was gaming within our statutes, and thereupon summoned Wallace before them. lie refused to disclose the names of the dealers. The Court imprisoned him for contempt. He applied for a writ of habeas corpus, and the case finally reached the Supreme Court,” and the prisoner was discharged.
Hpon this statement the judgment of this Court was manifestly correct, no matter what unreported reasons were assigned for it. In holding that “dealing in futures” was not gaming per se, as charged by the Circuit Judge, the Court then held no more than we have here held.
The defendant, it seems, was being examined generally upon the assumption of a right to have such examination made, with no charge of any unlawful dealing (which would have been gambling) pending before the grand jury upon which they wei’e expected to find an indictment or presentment.
His commitment for contempt was, therefore, unauthorized, and’ his discharge clearly proper. This is the extent to which the judgment in that case
The final defense in this case was one of settlement. The defendants insisted that they had made a settlement with their agent, Shoffner, at his and complainant’s instance, .and that complainant agreed that if such settlement was made, as it was -afterward done, that such settlement should operate to discharge defendants of liability to complainant. Several of the defendants so testify; but, complainant and Shoffner deny it and give some reasons in support of their version of it, which áre of much weight. We are entirely content to hold that, as against their evidence, the defendants have not made out the defense of settlement.
The Chancellor decreed against defendants. Three of them — Sulzbacher, Graves, and Mason — appealed. The judgment must be affirmed, with cost.