Wehmhoff v. Rutherford

JUDGE PAYNTER deliveked the opinion oe the COURT. By section 2, article 1, chapter 47, General Statutes [Ky. Stats., section 1956], if any person shall lose to another, at one time.or within twenty-four hours, five dollars or more, or property or other thing of that value, such loser or any creditor of his may recover the same or the value’thereof from the winner. Under section 9, article 1, chapter 47, General Statutes, [Ky. Stats., section 1969], w’hoever shall invite, persuade or otherwise induce another to visit any place where gaming is carried on, shall be responsible to such other or his creditors for whatever he may lose in gaming at such place. Under section 2, the right to recover is secured to the loser or his creditor against the winner. It is a distinct cause of action provided by the statute. It matters not whether the money or property is won at a gambling house or elsewhere. That the winner may be made liable it is not necessary that he should keep a place where gaming is carried on. Section 9 provides a cause of action to the loser or his creditors against “whoever shall invite, persuade or otherwise induce” such one to visit the place wiiere gaming is carried on. So if a person is invited, persuaded or otherwise induced by another to visit such place, and the person induced [94] loses in a game while there, he or his creditor can maintain an action against such other one and recover the amount so lost. It is manifest that distinct causes of actions exist under the sections named. In the one case the recovery is against the winner and in the other against the' one who induced him to visit the place where the gaming was carried on. It could not be insisted that under the statutes named the loser could sue and recover the amount of his loss both from the party who won the money and the party who induced him to visit the place where he engaged in the game. In other words, he could not recover double the amount which he had lost. The statement but emphasizes the fact that the sections of the statute in question provide for a recovery on different states of fact — distinct causes of action. The plaintiff, M. Rutherford, instituted this action against Wehmhoff & Boardman, alleging, substantially, in the first paragraph of the petition that defendants were the proprietors of a place on Market street in the city of Louisville where gaming was carried on; that the defendants induced him to visit their place, and while there, in March, 1893, “he played at and in said games of cards for money and wagered money and lost $370 in gaming at said place as is more particularly set forth in the subsequent paragraphs of this petition In the second paragraph of the petition it is alleged that in the gaming establishment named, ■ on or about March 14, 1893, he lost to the defendants, $240. In the third paragraph of the petition, he alleges that in the gaming house mentioned, on or about the 21st of March, 1893, he lost to the defendants, $130. He prays to recover $370. The petition shows that the total loss at the games was [95] $370; that he lost $240 of this sum at one time and $130 at another time. If the allegations of the first paragraph of the petition were true, the right to recover $370 was shown, but he says he will more particularly set forth the matter in subsequent paragraphs of the petition, in which, as we have shown, he states the sums which he lost and that he lost them to the defendants. The facts, if true, as alleged, show that the plaintiff had the right to. proceed against the defendants for having induced him to visit the place where gaming was carried on, or against them as winners of his money. He could not proceed against them for both on the facts as they appear in the petition. Had the defendants induced him to visit a place at one time where gaming was carried on and while there lost money, and at another time he had engaged in a game with them and had lost money to them, then by suitable paragraphs he could have maintained his action on both the cause of action, as provided under section 2, and on the cause of action given in section 9 of the statute. On the same stateof facts as they appear in this case,plaintiff seeks to recover of the defendants, $370, because the defendants induced him to visit their gambling house,and then seeks to recover the same sum by dividing it in amounts $240. and $130, by claiming they were the winners of the money. This he had ho right to do, as the defendants were entitled to know with certainty the cause of action they had to defend. In Muldraugh’s Hill, Campbellsville & Columbia Turnpike Co. v. Maupin, 79 Ky. 101, the petition showed that the two paragraphs related to the same occurrence and injury. The only difference between them was that the facts were set out more in detail in the second than in the first para [96] graph, and the court in that case said: “Where the petition shows that several paragraphs relate to the same cause of action, the plaintiff should be required to elect to prosecute one of the paragraphs, and the others should be stricken out, unless the plaintiff shall allege that the fact, as stated in one or the other of the paragraphs, is true, but he does not know which of them is true.” (Sub-section 4, section 113, Civil Code.) It is difficult to see how causes of action could be stated in the alternative under the statutes in question. It appears from the proof in the record that the plaintiff had a contract with his attorney that he was to give him one-half of what he might recover in this case, and it is insisted that this contract is void. This is true, but the question which arises is, is such contract available as a defense to the action? The action is brought not by the attorney but by the creditor. Under section 2, chapter 11, General Statutes (section 209, Kentucky Statutes), all contracts made in consideration of services to be rendered in the prosecution or in aid of the prosecution in or out of court, of any suit, whereby the thing sued for or in controversy is to be received by such person for his services or assistance, shall be null and void. Section 8, same chapter General Statutes (section 216 Kentucky Statutes), provides that “neither party to any contract made in violation of the provisions of this chapter shall have any right of action or suit thereon.” This does not mean that when a party has a cause of action existing at the time he makes the champertous contract he shall forfeit his right to recover thereon, but that neither he nor the champertor shall have any right of action or suit on the contract made in violation of the statute for the prosecution of the cause of action then existing. [97] In other words the statute does not cause the creditor who enters into a champertous contract to forfeit to his debtor the debt which was the subject of the champertous agreement. The statute does not declare the cause of action which was the subject of the champertous agreement null and void, but declares the champertous agreement null and void. A champertous contract (other than one relating to real' estate), for the prosecution of a cause of action is no defense,, and the champerty can only be set up by a party thereto, when the champertous agreement is sought to be enforced. (Burnes v. Scott, 117 U. S., 588; Robinson v. Beall, 26 Ga., 27; Small v. The C., R. I. & P. R. Co., 55 Iowa, 582; Pennsylvania Co. v. Lombardo, 11 L. R. A., 785, 49 O. St., 1.) However,-should a creditor transfer his cause of action to-an attorney or other person under an agreement that the suit-should be prosecuted in the name of the attorney or such other person, and for thus prosecuting the suit the attorney or such person was to have a part thereof for such services, then it would be available as a defense because it would be an action the direct effect of which would be the enforcement of the champertous agreement. So far as we are aware the rule as we have stated it to be is recognized to be the correct one by nearly all the States of the Union. Tennessee had a statute making it the duty of the court to dismiss the suit when the fact of the champertous contract was satisfactorily disclosed, and under that statute the courts of that State held that it was a defense. The courts of Wisconsin seem to have followed the rule of the Tennessee courts without having a similar statute. In this State there is a statute particularly applicable to contracts for the sale of, or for the prosecution of suits for98 the recovery of, land in the possession of another for the whole or part of the land thus possessed, or for the whole or any part of the profits thereof. Such contracts are null and void. The person in the adverse possession of such land, his personal representatives, heirs or assigns, or the person under whom such occupant claims or holds, his personal representatives, heirs or assigns, may give in evidence under the general issue or may plead the sale or purchase of any pretended right or title in violation of such contracts, in bar of any suit or action against them to recover the possession of or title to the land so held. This court has repeatedly held that such champertous contracts with reference to land were available as a defense to an action by the vendee,or to an action by the vendor for his benefit,to recover the land, but the court has often held that the vendor could repudiate the contract in good faith and the right of action survived to him. These decisions were in view of the particular statute relating to contracts of sale, etc., of lands in the adverse possession of another. The case is reversed with direction that further proceedings be had in conformity to this opinion.