McCardell v. Davis

GATES, P. J. This is an action on a promissory note, given as a renewal of a note given to the winner in a poker game. The note in suit was indorsed to plaintiff, a due course holder. Judgment was entered against the two makers and payee, indorser. The makers appeal from the judgment and order denying new trial. From, the early territorial days the following declaration has been upon our statute books (Civ. Code 1865-66, § 1745; C. C. 1877, § 1853; Comp. Laws 1887, § 4488; Rev. Codes 1903, Civ. Code, .§ 2200; Laws 1913, c. 279, § 16; Rev. Code 1919, § 1720) : “An indorsee of a negotiable instrument, in due course, acquires an absolute title thereto, so that it is valid in his hands, notwithstanding any provision of law making it generally void or voidable, and notwithstanding any defect in the title of the person from whom he acquired it.” In 1907 the Legislature enacted the following as section 3, c. 155, of the laws of thata session, now section 3929, Rev. Code 1919: “Any note, bond or other contract made and entered into, where the whole or any part of the consideration thereof shall be for money or other valuable thing, won or lost, laid, staked or betted at or upon any game of any kind, under any name or by any means; or for the repayment of money or other thing of value, lent or advanced, at the time and for the purpose of any game, play, bet or wager, or being laid, staked, betted or wagered thereon shall be absolutely void.” We therefore have the situation by the last-named section that the note in suit is void. By the former section we have the situation that the note is not void in the hands of respondent, notwithstanding section 3929. These two conflicting statutes having been re-enacted as a part of the same revision, it is our duty to interpret them together, and give some effect to each if it can be done. .Under the Uniform Negotiable Instrument Law: it is the holding, under the great weight of authority, that antigambling statutes such as said section 3929, Rev. Code 1919, are not repealed by that act, and that, even a bona fide purchaser of a note, given pursuant to a gambling transaction, cannot recover thereon from the maker. 5 Uniform Laws Ann. 262; notes 37 A. L. R. 698. [556] But, in enacting the Negotiable Instrument Law for this jurisdiction, the Legislature did not content itself with defining the rights of a due course holder in accordance with section 57 (Rev. Code 1919, § 1761), but in addition thereto it re-enacted the first above-quoted declaration as the third sentence of section 16, Negotiable Instrument Law (Rev. Code 1919, § 1720), and in the Revision of 1919 both of these conflicting statutes were re-enacted. The situation therefore is vastly different from a similar one arising in jurisdictions which have adopted the uniform act without our modification of section 16, and the decisions from- those’ jurisdictions are not persuasive of the interpretation to be given to our statutes. If we should say that Section 3929 is controlling, then we would utterly eliminate the third sentence of section 1720, a decision which we cannot believe is in accordance with legislative intent; whereas, if we should say that section 1720 is controlling, then section 3929 stands, except as against holders in due course. From the history of the legislation as above set forth, we are of the opinion that the Legislature intended the latter. The judgment and order denying new trial are affirmed.