48 Mo. App. 319 | Mo. Ct. App. | 1892
This is an action under the statute (R. S. 1889, sec. 5216) to recover from the defendant, as a stakeholder, money which was alleged to have been bet on the result of the election of the president of the United States. The amended petition reads:
“Wherefore plaintiff demands judgment against said defendant for said sum of $500 and interest thereon from the ninth day of November, 1888, together with the cost of this action.”
The answer was a general denial. The cause was submitted to the court without the intervention of a jury, and the finding and judgment were for the plaintiff. On this appeal the defendant claims: First. That the amended petition does not state a cause of action under the statute. Second. That the court admitted incompetent and irrelevant testimony. Third. That the court erred in the instructions.
II. The action of the court as to the instructions, presents the real question in the case. The objection made to the plaintiff’s instructions is that they authorized a recovery, if the plaintiff demanded a return of the-money before the defendant paid it over to the other party to the bet. The defendant’s view of the law is. presented in the following instruction, which the court refused: “The court, sitting as a jury, declares the law to be that, if the court finds from the evidence that the plaintiff on September 3, 1888, entered into á wager-in Jasper county, Missouri, on the presidential election then pending and to be held, and which was held on the-sixth day of November, 1888, the plaintiff betting $500-that Grover Cleveland would, at said election, be elected president, and said Perkins betting $500 that Benjamin Harrison would, at said,election, be elected president of the United States, and that said sums were, by said, plaintiff and Perkins, put into the hands of 'the defendant as stakeholder, to abide the result of said election, then in that case the plaintiff cannot recover the sum so-deposited and staked by him, unless he has shown by a preponderance or greater. weight of evidence that he-demanded of the stakeholder (defendant) the return of' the same before the determination of said bet, and before-it was' reasonably apparent to plaintiff, from the-returns of the published accounts of the results of' said election in the several states, that plaintiff had lost, his wager.”
The correctness of the court’s action as to the-instructions must depend upon the interpretation to be-given section 5216 of the statute, upon which the action-is brought. It reads: “Every' stakeholder who shall knowingly receive any money or property, staked upon any betting declared gaming by the foregoing provisions, shall be liable to the party who placed such money or property in his hands, both before and after
If the defendant’s interpretation of this section, as indicated by his instruction, is to prevail, then the statute is merely declaratory of the common law. Humphreys v. McGee, 13 Mo. 435; Hayden v. Little, 35 Mo. 418. ' The rule of the common law is that, so long as a party can withdraw from a wagering contract without dishonor to himself, the law will help him to do so. But, if he waits until the determination of the bet, or until it is reasonably certain -that he is a loser, his penitential tears will not avail him. The law will leave him to reap the results of his folly. This rule, in so far as it is applicable to the parties directly concerned, is highly equitable. The rulé, however, has been entirely abrogated by ' statute in this state. The legislature in an early day in the history of the state substantially enacted our present law concerning gaming ( R. S. 1889, ch. 73), the main object of which was to check and discourage gambling by subjecting parties to actions for the recovery of money or'property won at any game or gambling device. The first section (5209) reads: “Any person, who shall lose any money or property at any game or gambling device, may recover the same by civil action.” Section 5215 reads: “Bets and wagers on an election authorized by the constitution and laws of this state are gaming within the meaning of this chapter.” In Williams v. Wall, 60 Mo. 318, in construing the first section of the law (section 5209), Judge Shísrwood said: “The first section of the act in relation to gaming (Wag. Stat. 961) allows a recovery of money or property won' thereby by any
III. If there was any error in the admission of evidence, it could not possibly have prejudiced the defendant. It was entirely immaterial whether Hager or Perkins was the other party to the bet. That the wager was made, and the plaintiff’s, money placed in the defendant’s hands, we do not understand to be controverted in this court. Therefore, what difference could it make whether the money staked by the other party belonged to Hager or Perkins ? Or how could
With the concurrence of the other judges the judgment of the circuit court will be affirmed. It is so ordered.