Wellington v. Monroe Trotting Park Co.

90 Me. 495 | Me. | 1897

Savage, J.

In this case, the plaintiff sues to recover the balance of an unpaid trotting premium, which he alleges his horse won in a horse-race conducted by defendant, July 4, 1894. The defendant claims that the wrong society has been sued; that the plaintiff’s horse did' not win the race and “first money,” but did win “second money”; and that the plaintiff having received the sum of thirty dollars sent to him as “second money” must be deemed to have received it in full settlement of his claim against the corporation conducting the race.

I. The evidence of the plaintiff tends to show that it was the defendant corporation which conducted the race. The defendant offered no evidence upon this point, except an abstract from the printed report of the secretary of the Maine Board of Agriculture, as follows: “Name of society, Waldo and Penobscot. President, M. C. Chapman of Newburg Village. Secretary, E. H. Nealley of Monroe. Treasurer, F. I. Palmer of Monroe.” This evidence, if admissible, had no tendency to rebut the plaintiff’s claim that the defendant corporation was the party liable in this case. That there existed a “Waldo and Penobscot” society may be true, and still this race may have been conducted by the defendant.

II. The undisputed testimony shows that at the end of the seventh heat the plaintiff’s horse “Combination” and another horse “Hipponna” had each won two heats; that during the eighth heat, it being nearly dark, the judges caused patrols to watch the trotting upon that portion of the track where the judges themselves could not clearly see; that “Combination” came under the wire two or three lengths ahead of “'Hipponna ”; that the patrols reported to the judges that there had been no “running,” “nothing wrong”; that two of the three judges, in the presence of the drivers, of whom plaintiff was one, said: “We shall give ‘Combination’ first, and ‘Hipponna’ second”; that afterwards, and after the drivers had gone away, the judges announced to the public their decision that “ Hipponna ” had won the race and “ first money,” and “ Combination,” second. Is this last decision binding upon the plaintiff? In the absence of proof of fraudulent practices, we think it should be. The “judges” constituted the tribunal to which the plaintiff submitted when he entered his horse for the race, and to their decision, if honestly given, he should bow.

In a letter, written by defendant’s secretary to plaintiff’s counsel, there is an allusion to an appeal made to the “ National Trotting Association,” and the decision of that body; but no evidence was offered to show such appeal, or the rules under which it was taken, or its effect.

The plaintiff claims that the judges were, as to him, the defendant’s servants and agents, and that the decision in favor of “Hipponna” was caused and procured by the false and fraudulent conduct of one of them, Robinson. The other two were called as witnesses by the plaintiff, and their testimony, if believed, certainly tends to support the claim of the plaintiff, and their testimony is uncontradicted. It will not be profitable to analyze the testimony at length. It appears that the “ stand ” was crowded, and that the judges did not meet in consultation, but that the third judge assumed to communicate between the others, and falsely informed each of the two, who were witnesses, that the other and himself had decided to give the race to “ Hipponna,” and. that eacb of these two was thereby led to believe that a majority of the three had decided in “ Hipponna’s ” favor; and relying upon the information received, each submitted to the supposed majority; and thereupon the public decision was announced.

Such conduct was fraudulent, and the decision procured thereby should not be permitted to bar the plaintiff from recovering a premium which his horse clearly won.

III. The defendant sent the plaintiff a check for thirty dollars for “second money” in this race. The plaintiff notified defendant that he would not accept it as “second money”, but would credit it on account. He cashed the check. No reply appears to have been made.

We do not think, under the circumstances, that the plaintiff can be considered as having received the check in settlement of the claim sued.

The premium offered was $200. The horse winning “first money” was entitled to fifty per cent. Plaintiff claims only fifty dollars, deducting the entrance fee twenty dollars, and the cash received, thirty dollars. Demand was made July 4, 1894.

Judgment for plaintiff f 'or fifty dollars and interest from July 4-, 1894-