Misner v. Knapp

Lord, J. This is an action to recover a purse alleged to have been offered by defendants to the owner of the horse that should trot a mile in the best time less than two minutes and twenty-five seconds, at City View Park. The complaint alleges that the defendants are associated under the name of the Northwestern District Agricultural Association, and that in the year 1883 they offered a “ special purse ” or prize of $250 to the owner of the horse that should trot a mile in the best- time less than two minutes and twenty-five seconds, at the City View Park, in the said county, on the thirtieth day of September, 1883; that the plaintiff was the owner of a certain horse, which was duly entered by him for such race, in accordance [138] with the conditions and rules of the defendants’ association, and that said horse did, in the manner and time prescribed by the association, and under the directions of the hoard of directors thereof, trot in said race a mile in less than two minutes and twenty-five seconds, to wit, in two minutes and twenty-four seconds; that it was the best time made in said race, and that the defendants failed and refused to pay, etc. The defendants filed a demurrer to the complaint, upon the ground of a want of facts to constitute a cause of action, which was overruled; and this is the first error relied upon by the defendants on the appeal. The * contention of the defendants is, that the purse offered was a bet or wager, and as such, the promise to pay it was void, and consequently no action will lie to enforce the payment of such promise. As this proposition assumes that the purse, prize, or premium offered was a bet or wager, it becomes necessary to ascertain the definition of a bet or wager. Bouvier defines a wager to be “ a contract by which two parties, or more, agree that a certain sum of money, or other thing, shall be paid or delivered to one of them on the happening or not happening of an uncertain event.” A bet is a wager; though a wager is not necessarily a bet. (Cassard v. Hinman, 1 Bosw. 212.) “A bet or wager,” said Folger, J., is, “ ordinarily, an agreement between two or more that a sum of money, or some valuable thing, in contributing which all agreeing take part, shall become the property of one, or some of them, on the happening in the future of an event at present uncertain; and the stake is the money or thing thus put upon the chance.” (Harris v. White, 81 N. Y. 539.) At common law, a wager constituted a good contract, unless it was contrary to public policy, morality, or the like. (Chit. Cont. 468.) All wagers, therefore, at com [139] mon law, were not illegal. (Da Costa v. Jones, Cowp. 729; Good v. Elliott, 3 Term Rep. 693; Bunn v. Biker, 4 Johns. 427; S. C., 4 Am. Dec. 292.) It was not illegal, at common law, to make a bet or wager on a horse-race, and an action to recover a wager won has been maintained. (McAllester v. Haden, 2 Camp. 438; Blaxton v. Bye, 2 Wils. 309; Gibbons v. Gouverneur, 1 Denio, 170; Harris v. White, 81 N. Y. 544; Comly v. Hillegass, 94 Pa. St. 132.) But by statute in England, and most if not all the states, all contracts by way of gaming or wagering are null and void. And the inquiry now is, whether, upon the admitted facts, the purse or prize offered comes within the meaning of a wagering contract. Now, according to the definition of “wager,” there must be two or more contracting parties, having mutual rights in respect to the money or other thing wagered, or, as sometimes said, “staked,” and each of the parties necessarily risks something, and has a chance to make something, upon the happening or not happening of an uncertain event. But a purse or prize offered by a party, and to be awarded to the successful competitor in a contest in which such party does not engage, nor has any chance of gaining, but only perhaps of losing, is without the element of a chance of gain or a risk of loss which characterizes the wager agreement. The distinction has been stated thus: “ In a wager or a bet, there must be two parties, and it is known, before the chance or uncertain event upon which it is laid is accomplished, who are the parties who must either lose or win. In a premium or reward, there is but one party until the act or thing or purpose for which it is offered has been accomplished. A premium is a reward or recompense for some act done; a wager is a stake upon an uncertain event. In a premium it is known who is to give before the event; in a wager it is [140] not known until after the event. The two need not be confounded.” (Alvord v. Smith, 63 Ind. 59.) In Harris v. White, supra, Folger, J., makes this distinction: that in a bet or wager, “each party gets a chance of gain from others, and takes a risk of loss of his own to them,” which is an ingredient that does not enter into “a purse or prize offered by a person for the doing of something by others, into the strife for which he does not enter,” as “he has not a chance of gaining the thing offered; and if.he abide by his offer, that he must lose it, and give it over to some of those contending for it, is reasonably certain.” There was no error in overruling the demurrer. The next assignment of error is in sustaining the demurrer of the plaintiff to the new matter set up in the answer 'of the defendants. The ground of the demurrer was that the new matter pleaded did not constitute a defense. The answer set up in detail the rules and regulations of the society which governed in competing for any prize or purse upon the track of the association, etc., and the facts constituting the alleged fraud in entering an ineligible and disqualified horse under such rules and regulations. In support of the demurrer, it was claimed that the plaintiff was not bound to know what such rules and regulations were. But the answer to this is found in the complaint, in which the plaintiff alleges that the horse “was duly entered by him for such race, in accordance with the conditions and rules of the defendants’ association,” etc. It is also claimed that the facts constituting the fraud are not sufficiently specified. The rule is elementary, that in charging fraud the facts must be stated showing in what the fraud of the party consisted. It is not enough to indulge in a general accusation that a party acted fraudulently, or made fraudulent statements; but the facts constituting the fraud, or show [141] ing the manner of its perpetration, must be distinctly stated, so as to apprise the adverse party what is meant to be proved, and afford him an opportunity to answer it, or to inform the court whose duty it is to declare the law arising upon the facts. The matter set up is not open to this objection. The facts showing in what the fraud of the plaintiff consisted, or how he was guilty of it, are distinctly specified and averred. It was error, therefore, to sustain the demurrer, and the judgment must be reversed.