Swaggard v. Hancock

I. Hall, J. No bill of exceptions was filed in this case, and the point is raised by the defendant’s counsel that, therefore, the action of the circuit court on the plaintiff’s motion for judgment is not open to review by us. This is true. United States v. Gamble, 10 Mo. 457; Christy's Adm'r v. Meyers, 21 Mo. 112. But the petition, answer, and judgment of the circuit court are parts of the record without a bill of exceptions. State v. White, 61 Mo. 441. The judgment was, that the answer was a sufficient answer and defence to several demands of the petition, and that, plaintiff refusing to plead further, he “take nothing by this writ; that defendant go hence without day,” etc. This action of the court appears on the face of the record, and needs no motion to disclose it (Bagley v. Emerson, 79 Mo. 140); and is open to review by this court, without the aid of a bill of exceptions. “If error is committed, apparent on the face of the record, no bill of exceptions is needed.” State to use v. White, 61 Mo. 442. The question, therefore, for us, is, not whether the court erred in overruling the plaintiff’s motion for judgment, but whether the court erred in rendering the judgment entered in the case. [605] II. This action is based on our statute in relation to gaming, the first section of which (Rev. Stat., sect. 5720) provides: “Any person, who shall lose any money or property at any game or gambling device, may recover the same by civil action.” It was early held that, under, that statute, a horse race was a game. Shropshire v. Glasscock, 4 Mo. 536 ; Boynton v. Curle, 4 Mo. 600. And the consistency between that holding and the subsequent holding that a horse race was not a gambling device within the meaning of our criminal code (State v. Hayden 31 Mo. 35), was explained in Hayden v. Little (35 Mo. 420). Ever since the last named case, decided in 1865, the statute under consideration has continued unamended, and we must hold it to be the settled law of this state that a horse race is a game under that statute.. And we think that it necessarily and logically follows that, if a horse race is a game under that statute, a foot race is also a game in the meaning of said statute. We so hold. III. The plaintiff’s horses, then, which the defendant returned to him under the terms of the so-called compromise, had been lost by plaintiff at a game. It matters not who won the horses, the defendant, or Hill, the plaintiff had the right to demand their return by the defendant in whose possession they were, and, upon the defendant’s refusal to make such return, to recover them by the appropriate “ civil action.” By the statute the plaintiff was not limited to his action against the person winning the horses. Williams v. Wall, 60 Mo. 320. The plaintiff, plainly, could have recovered the horses from any one who had taken them with knowledge of the facts (Williams v. Wall, [606] supra) ; and, especially, from the defendant who actually did the gaming, whether he did it for himself or another. Cato v. Hutson, 7 Mo. 146. IV. Clearly, under the well settled law of this state at the time of the so-called compromise, the plaintiff was entitled to the possession of the horses, and could have enforced his right to such possession by civil action. Was the return of the horses by the defendant, under such circumstances, a sufficient consideration to support the agreement of compromise ? There is no misunderstanding or doubt as to the general rule concerning the sufficiency of the consideration of a contract. Our supreme court has approved the following statement by Mr. Parsons as to the consideration of a note : the consideration “may be either a gain or a benefit of any kind to him who makes the promise, or a loss or injury of any kind suffered by him to whom it is made.” Hudson et al. v. Busby, 48 Mo. 36. But payment of a part of what one'is bound in law to pay forms no consideration for postponing the payment of the residue. Price v. Cannon, 3 Mo. 453. And the promise by the maker of a note to pay the same rate of interest as that •drawn by the note is not a sufficient consideration to support an agreement for an extension of time of the payment of the note, for the reason that the promise by the maker of the note is “merely a promise to do what he is already bound to do.” Moore v. Bank, 22 Mo. App. 695. And the payment of the principal of a note •constitutes no consideration for a promise to discharge the maker of the note from the payment of interest. Willis v. Gammill, 67 Mo. 730. We think that it may be stated as an undoubted proposition of law, that the payment by one of a debt clearly due does not constitute a sufficient consideration to support any kind of a •contract or agreement. No one can claim compensation [607] for doing that which he is plainly and clearly bound in law to do. And so in the case at bar. The plaintiff was ■clearly entitled to the possession of the horses ; plainly, by civil action, he could have recovered possession of them. In other words, in law, the defendant was clearly and plainly bound to give possession of the horses to the plaintiff. For doing this the defendant can claim no compensation. The delivery of the horses by the defendant to the plaintiff cannot form a consideration ■sufficient to support the agreement of compromise. The fact that the defendant might have forced the plaintiff to a civil action to recover the possession of the horses, and that the delivery of the horses to plaintiff saved him that trouble and expense, does not change the case. “To make the settlement of assumed rights a sufficient consideration for a promise, there must be, at least an appearance of right sufficient to raise a possible ■doubt, in favor of the party asserting the claim.” Long et al. v. Towl, 42 Mo. 549. This was said in relation to the dismissal of certain suits. The court added : “The plaintiffs, having clearly no just claim against the defendant, had no right to sue him, and can derive no advantage from having done so. The dismissal of suits so palpably unjust forms no adequate consideration for a promise.” And we say that the surrender of the horses "by the defendant to the plaintiff, which surrender the defendant was plainly in law bound to make, forms 'no consideration for the agreement of compromise. As the dismissal of a suit, palpably unjust, is no adequate consideration for a contract, so the surrender of property to •one, plainly its owner and entitled to its possession, without suit, is no adequate consideration for a contract. The agreement of compromise pleaded in the answer was without consideration, and, therefore, of no effect, null and void. [608] V. The statute under discussion is a penal statute, and the acts of gaining included within its terms must be regarded as prohibited thereby. As a principal cannot confer upon his agent an authority to commit a tort upon .the rights or the property of another (Story on Agency, sect. 311), so a principal cannot confer upon his agent authority to commit an act prohibited by law. An agent who commits an act prohibited by law is liable as a principal. The defendant, in this case, was liable under the statute as if he had acted for himself. Cato v. Hutson, 7 Mo. 148. By gaming, the defendant committed a wrong against the public, and he must suffer the penalty imposed by the statute therefor. The defendant must return to the plaintiff the money lost by him on the bets made by the defendant. The answer alleges that Hill furnished in person fifty dollars on the first bet of two hundred dollars. Whatever doubt there might have been as to the liability of the defendant for' the fifty dollars, lost by the plaintiff, and bet against the fifty dollars thus furnished by Hill, is removed by the further allegations of the answer of an agreement between Hill and defendant to divide between them in equal parts the entire sum won on the bets made. By this agreement the defendant and Hill became jointly liable .to the plaintiff for the entire sum lost by him on said bets. Laytham v. Agnew, 70 Mo. 49. These are also additional reasons for holding that the plaintiff was clearly entitled to recover his horses from the defendant. As to the fifty dollars furnished by Baker the plaintiff had no right of recovery. That money was furnished by Baker with the knowledge of all parties, including the defendant. Baker and not plaintiff could have recovered it. In Cato v. Hutson (7 Mo. 146), and Humphrey v. McGee (13 Mo. 436), the interest of the609 others than the plaintiff in the bets was unknown. Those cases turned upon the fact that such interest was unknown. The money bet by Cason was the plaintiff’s money and was bet for plaintiff. The plaintiff was entitled to recover it. For these reasons, we think, that the court erred in holding that the answer stated a complete defence to the petition. On the pleadings the plaintiff was entitled to a judgment for a certain sum. We have concluded, neither to render that judgment here, nor to direct the circuit court to render it, but, inasmuch as we do not hold wholly in favor of the position taken by either side, and as, therefore, one party or both may desire to plead further, to reverse the judgment and remand the cause for further proceedings in accordance with this opinion. It is so ordered. All concur.