Johnson v. Kaune

Hall, J. — Is the contract in this case a wagering or gambling contract ? In illustrating the difference between a contract of sale and a wagering contract, Lewis, P. J., said: “Let us suppose a case in which, when the agreement is made, no delivery is contemplated by either party. It is, in fact, agreed that there shall be no exchange of equivalents, real or supposed. A settlement of differences, according to the fluctuations of the market, is all that either party intends, and all that they contract for. For the money that the seller is to receive, if any, he parts with nothing. For the money that the buyer is to pay, [25] if any, lie gets nothing. The parties simply wage against each other a contract of skill in predicting future conditions of price. When settlement day comes, the winner pockets the proceeds, not merely without giving a qicid pro quo, but without having incurred any obligation, in any contingency, so to do. This is simply a wagering contract from the beginning, whose demoralizing tendencies are so universally recognized that the courts will not enforce it for either party.” Williams v. Tiedeman, 6 Mo. App. 275. See, also, Kent v. Miltenburger, 13 Mo. App. 507; Waterman v. Buckland, 1 Mo. App. 45, and Buckingham v. Fitch, 18 Mo. App. 91. The fact that the hogs were, at the time of the contract, actually owned by the defendants, is immaterial, “and the law of the case is the same whether a specific something then actually owned by one of the parties, and in view, is the subject of the sham sale and purchase, or whether the thing is not identified, a thing of its kind and grade merely. If the mutual understanding, or intention of the parties is that the transaction shall be closed by a settlement of differences, according to the fluctuations of the market, and that the contract shall not in good faith be one of sale or purchase, considerations of public policy render void the gambling arrangement.” Cockrell v. Thompson, 85 Mo. 509. It would be difficult to conceive a plainer case of a wagering contract than the contract in this case, according to the testimony of the plaintiff himself. The contract was void. Upon it the plaintiff has no right to recover. The judgment is reversed. All concur.