Merchants' Savings, Loan & Trust Co. v. Goodrich

Mr. Justice McAllister delivered the opinion of the Court: There is no writ contained in the record; but the declaration contains two counts — one in replevin in the detmet, the other in trover. The only subject matter of the action was two certified checks, dated March 22, 1869, for the payment each of the sum of $2,500. The verdict was informal, but in substance, upon the count in replevin, finding the property replevied to be the property of the plaintiff, and assessing plaintiff’s damages at the sum of $6,275. The court below, overruling a motion by defendant to set the verdict aside and grant a new trial, and failing to have it reduced to proper form, in the presence of the jury, at the July term, 1873, gave judgment upon the verdict upon the count in replevin, that “ the plaintiff do have and retain the property replevied in said cause, by virtue of the writ of replevin issued herein, and also that plaintiff do have and recover of and from the defendant his damages of $6,275, in form as aforesaid assessed,” etc. The defendant appealed to this court. The bill of exceptions purports to contain all the evidence. The record is conclusive upon the question that the checks were replevied out of defendant’s hands; and, while there is no evidence upon the question of damages, and the only damages which plaintiff could, in any event, recover for the wrongful detention of the checks would be interest on $5,000, at the rate of six per cent per annum from the time of the demand and refusal until they were replevied by plaintiff, which, although left uncertain by the record, must have been less than two years, still, as the record shows, the plaintiff not only obtained the checks by his writ of replevin, but has recovered a judgment against appellant, a mere stakeholder as to the checks, in a sum exceeding $6,000 as damages. It is unnecessary to even say that this is erroneous. The judgment coul'd not be changed so as to alter its legal effect, without alteration in matter of substance. Such correction, by the settled law of this State, could not be done by the same court, at a subsequent term. There is, however, another objection taken to the recovery, which, if well taken, goes to the very foundation of the action. It is, that the transaction is void, as being against public policy. All wagers are not void at common law. It is only those that are contrary to public policy ; as, on the question of war and peace, on the enjent of cun éleeUon, etc.; Metcalf on Contracts, 238, and cases in notes; Chitty on Contracts (10th Am. Ed.), 544. The author last referred to says: “ But, at common law, an action could not be maintained on a wager, if it was contrary to public policy, or immoral, or in any other respect tended to the detriment of the public.” The same reasons, we apprehend, would vitiate any other contract, whether it were strictly a wagering contract or not. Mow, this case arises out of transactions, which, in any view we can give them, present the taint. The case was tried in the court below, against the objections of appellant, upon the theory that the contract of bailment itself was the limit of inquiry, and that the memorandum of contract written upon the envelope was conclusive upon appellant, as to the terms. Concede that to be so, and what was the position of the parties? The appellant was the mere stakeholder of $5,000 belonging to Shepard & Welles, to be delivered to Goodrich only upon the event of an election being decided in a particular way. This is the language: “ The within certified checks are deposited with this company (appellant), and are to be delivered to Grant Goodrich, in case the vote to-day to be taken in West Chicago shall be in favor of what is known as the West Side Park bill; but in case the majority of votes shall be cast against said bill, then said checks are to be delivered to H. M. Shepard and F. L. Welles.” This transaction, standing by itself, is a wager, and one lacking the element of equality between the parties. The risk was all on the side of Shepard & Welles. A wager is a contract by which two or more parties agree that a certain sum of money, or other thing, shall be paid or delivered to one of them on the happening of an uncertain event. 2 Bouv. law Diet. 638. The uncertain event here, upon the happening of which the checks were to be delivered to Goodrich, was the event of a public election. The contract was, therefore, a wagering contract that was against public policy, and a right of recovery could not be based upon it. But whether strictly a wagering contract or not, it is void upon grounds of public policy, because the effect is detrimental to public interest. Upon this principle it has been held that a note to become due upon the election of A to a certain office is void, upon grounds of public policy, as much as any formal wager. Cooper v. Brewster, 1 Minn. 94; Nudd v. Burnett, 14 Ind. 25. So, if we go back to the original contract between Marvin & Kent on the one part, and Shepard & Welles upon the other, in part performance of which these checks were put into the hands of appellant, in the place of the Third National Bank, the stakeholder therein mentioned, the same difficulty arises. By its very terms the event of the election in question, in favor of the park bill, is made not only an indispensable condition precedent to the contract becoming operative, but an essential part of the consideration. The plain tendency of such a contract is detrimental to the public, and it is void upon grounds of public policy! The judgment of the court below is reversed, and the cause remanded. Judgment reversed.