187 Iowa 293 | Iowa | 1919
The checks sued upon are two in number, one for $150, and another for $250, both drawn by the defendant, Dick Swift, upon the First National Bank of Hawarden, and made payable to the order of John Wilson, a name vwhich appears to be endorsed thereon. Plaintiff, claiming to be a good-faith holder for value, alleges that the checks have been dishonored, and asks judgment against the maker.
The defendant admits making the checks and delivering them to one Edwards, who negotiated them to plaintiff, and pleads in defense that they were made and delivered in payment of a gambling debt, contracted in a game of craps with said Edwards. The issues were tried to the court, a jury being waived. Judgment for defendant.
The plaintiff is a practising lawyer of experience, residing at Hawarden. Living in the same town is the defendant, Swift, a retired farmer, of convivial habits, socially inclined, and (until his experience hereinafter referred to) profoundly confident of his ability to beat a professional gambler at his own game. Edwards is a travel
Shortly before the date of these checks, Edwards drifted into Hawarden, and, as was quite natural, soon came into contact with Swift. The powerful attraction of similar tastes led them to seek a convenient room, where they spent most of Sunday night together. Swift is candid enough to say:
“I can’t say we were both perfectly sober. I don’t think we was too sober, or that we was very drunk.”
Edwards furnished the dice, which defendant swears he himself carried away at the close of the game (and, indeed, it seems that the dice were all that was left to him when the game was over), when examination revealed that they were “dirty,” “loaded,” or “marked,” to make the game a sure thing for their owner. Being asked by his counsel to explain or describe the game, he proceeded, with apparent surprise at the professed ignorance of his counsel, to elucidate the mystery and science of it, in the following luminous manner:
“It is what is called a crap game. You play this game with dice. Q. How many? A. Two. Q. You shake these dice from a box? A. No, you have them in your hand, and throw them, that way [indicating]. There is no limit to the number that can play the game. Q. How does the game go, — how is the winner and loser determined? A. You don’t understand the game? Q. I don’t understand the game at all. That is why I am asking you so particularly. A. Well, it is seven come eleven, when they first come out,— see, — and if you don’t make it, — see,—if you make a six, you lose, — see? Q. Well, you take turns about throwing the dice? A. Yes; there is the dice, — see,—and I lose if I
During the night’s session, the participants had two reckonings, at the first of which the account was settled by the defendant’s check of $150, and at the second, the other check was made and delivered. For reasons perhaps not hard to divine, Edwards took the precaution to have both checks made payable to “Wilson.” Swift made his way home on Monday morning, and took early opportunity to go to the bank and stop payment of the paper, being led thereto, apparently, not so much because of his losses, as by indignation at the discovery that Edwards had abused his confidence, by cheating him with “dirty” dice.
The truth of defendant’s story as to the origin and consideration of the checks is apparently conceded by the plaintiff; or, to say the least, there is no attempt made to deny or discredit defendant’s testimony in this respect.
Edwards, apparently finding Hawarden a fertile field for the exercise of his special talent, remained there through the week, without presenting the checks for payment. On September 26th, he was arrested as a vagrant, indulging in games of chance, and brought before the mayor for hearing. Among the entries in the mayor’s docket in that proceeding are the following:
“And now, on this 26th day of Sept., 1915, the defendant being brought into court, he was arraigned; says his right name is C. E. Edwards. Defendant was advised of right to Council and time to prepare for trial. Defend
“And now, on the 27th day of Sept., 1915, at 3 o’clock P. M., the case came on for hearing. Plaintiff appears by himself and his Atty., C. A. Plank, and pleads guilty to the charge as set forth in the information. Defendant by himself and his Atty. pleads banlcruptsy and agrees that the fine and penalty to be assessed shall stand in full force against the defendant should he return to Hawarden. It is therefore ordered that the defendant be released and that he according to agreement .leave Hawarden at once and the fine and penalty assessed shall stand remitted so long as he returns not to the city but in full force and effect should he return.
“After hearing the plea of the defendant, the evidence offered and the arguments in the case, the Court finds the defendant guilty upon his own plea entered by his Atty. C. A. Plank; and no sufficient cause to the contrary being shown, it is ordered, adjudged and determined that defendant pay a fine of Twenty-five Dollars, and the costs of this action, taxed at Six Dollars and Thirty-five Cents, or in lieu of the above fine, that he be imprisoned in the County jail for a period of 30 days.”
Observing the dates disclosed by the mayor’s record, it is interesting to find that plaintiff does not claim to have obtained the checks until September 28th, the morning after the sentence of banishment was' imposed upon his client by the mayor.
It is but fair to plaintiff to say that he denies having appeared for Edwards in the mayor’s court, on that day; but, on cross-examination, his denial seems to be as to the correctness of the date, rather than of the fact of his appearance.
The story of plaintiff’s receipt of the checks is too long and too intricate to permit its entire inclusion here;
The case of Kushner v. Abbott, 156 Iowa 598, has sometimes been cited as holding that the Negotiable Instruments Law has had the effect to repeal or modify Code Section 4965; and the syllabus or headnote to that case does not reflect the real point decided in the opinion. Though the question as to the effect of the later statute is there mentioned, the court expressly says it is not presented by the record, nor is its decision attempted.
Our attention is called to a case cited from the court of District of Columbia, and possibly others, which tend, in some respects, to uphold the plaintiff’s contention; but we are thoroughly persuaded that, in enacting our Négotiable Instruments Law, the legislature did not intend thereby to repeal or modify the statute which places a ban on all gambling contracts, and we are not willing to hold that it has any such destructive effect by implication. The law which throws its shield around commercial paper is too often made to do duty as a city of refuge for unscrupulous persons' in the perpetration of frauds and unlawful purposes generally, and courts will hesitate about swinging the door any wider for their shelter, until compelled so to do by explicit legislative command.
III. Plaintiff claims that defendant had estopped
The objection so raised is not well taken. Defendant did stop payment with reasonable promptness, and plaintiff’s evidence is insufficient to sustain a finding that he was in any manner deceived or misled to his injury by any act on the part of defendant.
The judgment below is too clearly right to call for further discussion, and it is, therefore, — Affirmed.