120 Mo. App. 32 | Mo. Ct. App. | 1906
Action on a promissory note for $2,-200 dated April 5, 1902, executed by defendant and payable to the order of plaintiff drawing interest at the rate of eight per cent from date. In his answer the defendant admitted the execution of the note, but pleaded in defense that the consideration for it was an indebtedness contracted in gambling deals in which he and plaintiff were jointly interested. The gambling deals were alleged to be speculations on the rise and fall of the future market values of wheat,- the parties not contemplating the delivery of the wheat they pretended to purchase, but only to gamble on its future price. It is averred that the note was given by defendant for that proportion of the joint loss sustained in the ventures, which plaintiff had borne in excess of the amount of loss borne by defendant. This special defense was put in issue by a general reply. Plaintiff introduced the note in evidence and rested. Thereupon defendant introduced plaintiff’s deposition as an admission against interest. The deposition and other testimony would support the conclusion that plaintiff and defendant had been engaged in bucket-shop transactions with which the note in suit was connected. Indeed, we have no doubt that their dealings were of a gambling character, consisting of marginal speculations on the market prices of wheat, without the sellers intending to deliver the wheat or the buyers to receive it. The buyers were the two parties to this action and a man named Wilson, who was connected with the deals in some manner. But though the evidence to prove the business of the parties was of a gambling nature is satisfactory, the plaintiff swore he understood the wheat was to be delivered
The court directed a verdict for defendant and plaintiff appealed.
Plaintiff’s testimony that he was innocent of any knowledge that the transactions in which he and defendant were engaged were of a wagering character and not to be followed by deliveries of wheat, is said to have raised an issue of fact for the jury which the court erred in ignoring. Though admissions made by plaintiff on the stand regarding his knowledge of the nature of the transactions, went far to refute the notion that he believed the purchases of wheat to be genuine and not marginal dealings, we may concede, for argument’s sake, that an inference fairly might be drawn in favor of his innocence, and yet it does not follow that the note in suit was valid and he entitled to a- judgment on it. If he was an
We have referred to tbe conceded conflict in the evidence regarding tbe scope of tbe settlement which occurred when tbe note in suit was given. This question is important, because, if tbe purpose of tbe note was to secure a balance found to be due plaintiff from defendant on a settlement of their joint speculations, it is tainted by an illegal consideration and void. [Edwards Brokg. Co. v. Stevenson, 160 Mo. 516; Crawford v. Spencer, 92 Mo. 498, 4 S. W. 713; Schreiner, etc., Co. v. Orr, 55 Mo. App. 406; Armstrong v. Bank, 133 U. S. 433, 467 et seq.;
“The recent authorities since this case was decided, have not entirely cleared the subject of all difficulty. The distinction between the cases in which a recovery can be had, and the cases in which a recovery cannot be had, of money connected with illegal transactions, which seems now best supported, is this: that, wherever the party seeking to recover is obliged to make out his case by shoving the illegal contract or transaction, or through the medium of the illegal contract or transaction, or when it appears that he was privy to the original contract or transaction, there he is not entitled to recover any advances made by him, connected with that contract. But when the advances havé been made upon a new contract, remotely connected with the original illegal contract or transaction, but the title of the party to recover is not dependent upon that contract, but his case may be proved without reference to it, there he is entitled to recover. Mr. Evans, in his edition of Pothier on Obligations, vol. 2, appx. No. 1, pp. 1-19, has examined this whole subject with great diligence and ability. His conclusion is that money advanced to pay the debt of another, due upon an illegal transaction, may be recovered by the party lending it, from the party for whom it is advanced, if the lender was not a party to the original transaction, or it was not a part of the original scheme; although, at the time of the advance, he knew of the illegality.” [2 Story, Agency (2 Ed.), pp. 425, 426, note.]
A case in its facts precisely like the one at bar, provided the settlement merely embraced the indebtedness to the bank, is Faikney v. Reynous, 4 Burrow 2069, in
On another trial of the case the jury should be instructed in accordance Avith the views expressed in this opinion. The judgment is reversed and the cause remanded.