Rehberg v. Tontine Surety Co.

Grant, J. (after stating the facts). 1. We do not deem it essential to enter into a detailed statement of the testimony in regard to the negotiations between these two-corporations which culminated in the latter’s becoming possessed of all the business and assets of the former. "It is sufficient to say that there was evidence to sustain the charge of the court, and to show that defendant had swallowed up all the business and assets of the former-company, had notified the holders of contracts in the former company that it (the latter) had assumed them and would pay them, and that one consideration for such transfer was the assumption by the defendant of the contracts made with the former company, and that plaintiff and other contract holders in the former company acted in accordance therewith. The instruction was in direct accord with the former holdings of this court. Shadford v. Detroit, etc., Railway, 130 Mich. 300 (89 N. W. 960), and authorities there cited. Counsel for the defendant characterizes the transaction as one solely of purchase, in which the purchaser is not liable for the debts of the vendor. As shown in the above cases, that principle does not apply to cases of this character. 2. The defendant is not in position to assert that these contracts are ultra vires. There is nothing to indicate that they were not entered into in good faith. The defendant has received the plaintiff’s money. The law estops it to now assert, “You cannot have what I promised to give, because I had no authority to make the contract.” 3. It is next asserted that this is a gambling contract, and void, as against public policy. We cannot so hold. The contract provides for the payment of $80 in cash, and the agreement to deliver, in consideration therefor, a diamond, which the party (the vendee) may keep or sell back, as he chooses. It was contemplated that many forfeitures would occur from failure to make weekly payments, and that the corporation would make large gains from this source. They are not gambling contracts upon their face, nor does the testimony taken in this case show them to be [139] such. There is no mutuality in a gambling contract; no opportunity for both sides to make gains; no consideration to be paid by one and received by the other. One must gain, and the other must lose. This contract is not within the definition of gambling contracts. 14 Am. & Eng. Enc. Law (2d Ed.), 581, 582. "We have not before us the question of whether the State should permit corporations to be organized for such purposes, or permit foreign corporations to carry on such business within the State. That question may arise in a direct proceeding by the State against the corporation. The judgment is affirmed. Hooker, C. J., Moore and Montgomery, JJ., concurred. Long, J.,'did not sit.