Hayden v. Little

Bay, Judge, delivered the opinion of the court. This was an action to recover the sum of §250, money won upon a horse race. The facts disclosed upon the trial are substantially as follows: Plaintiff and one Elocious Buck-man agreed to run a horse race on the 12th of May, 1860; said plaintiff to run his horse against the horse of said Buck-man upon a wager of §250 aside; plaintiff deposited §250 with defendant as stakeholder, and one John S. Buckman deposited with defendant a like amount in behalf of Elocious Buckman. The race took place at the stipulated time, and was won by plaintiff’s horse. Some time after the race, but before the institution of this suit, John S. Buckman demanded of defendant the money he had deposited with him, and defendant paid it over to him. This suit is to recover the §250 deposited by Buckman with defendant as stakeholder. The plaintiff asked the court to instruct the jury as follows : “1. If the jury believe from the evidence, that the plaintiff and one Elocious Buckman agreed to run a horse race on 12th day of May, 1860, by horses especially owned by them, and that they bet the sum of §250 each that his horse would beat the other’s horse in said race, and deposited said sum of §250 each with the defendant as stakeholder, and the whole to be [paid] over by defendant to that one of said parties whose horse should beat the other’s horse in said race ; and that said race was run in pursuance of said agreement on the 12th day of May, 1860, and the plaintiff’s horse [421] beat said Buckman’s horse in said race, and defendant refused to pay over the $250, deposited with him by said Buck-man, after the race was determined, they will find for the plaintiff the amount sued for and the interest thereon at six per cent, per annum from the time of such refusal, unless they further believe from the evidence that said Buckman demanded of the defendant the amount so deposited by him with defendant before said bet was determined. “2. A horse race is not a gambling device within the meaning of the act to restrain gaming, and betting on the result of a horse race is not prohibited by said act.” Which instructions the court refused to give, and plaintiff duly excepted. The court then, at the instance of the defendant, gave the following instruction: “ 1. If the jury believe from the evidence in the case, that the money mentioned in the petition was so much money placed in the hands of the defendant by Buckman as a wager on a horse race to be run by said Buckman and plaintiff, and that the defendant paid said money back to said Buckman before the institution of this suit, the jury should find for the defendant.” To the giving of which plaintiff objected and excepted. A verdict being given for defendant, plaintiff filed his motion for a new trial,' which being overruled, he appeals to this court. The only point presented by the record relates to the giving and refusing instructions. The counsel for the appellant made a lengthy argument to show that the answer filed contains no valid defence, because it is not stated that a demand of the money was made of the stakeholder previous to the expiration of the time agreed upon by the parties for the determination of the bet or wager, and that Buckman, if he had any cause of action against the defendant as stakeholder, has lost it by not instituting a suit within the time prescribed by the act to restrain gaming. We are at a loss to see the application of this argument; for this is not a suit by Buckman against the stakeholder to recover the money [422] by him deposited, but it is a suit by the plaintiff to recover from the stakeholder money won upon a horse race, and which this stakeholder returned to the losing party. In other words, it is a'suit to enforce a contract which has for its consideration a wager upon a horse race. The only question is, whether the law will lend its aid to enforce such a contract. It is well settled that no action will lie upon a contract based upon an unlawful consideration, or which is repugnant to law or sound policy, or good morals: “ ex turpi contractu actio non oritur.” Kent says: “ if a contract grows immediately out of or is connected with an illegal or immoral act, a court of justice will not enforce it.” It has been held by this court that horse racing is gaming within the meaning of our statute and “ to restrain gaming,” that a note given to secure a forfeiture for failing to run is void. (Shropshire v. Glascock et al., 4 Mo. 536; Boynton v. Curle, id. 599.) There is no conflict between these cases and the case of the State v. Hayden, 31 Mo. 35; for in the latter case it was merely held that a horse race was not a gambling device within the meaning of the 17th sec. of the 8th art. of the Act concerning Crimes and Punishments. The Act to restrain Gaming (R. C. 1855, p. 818) authorizes any person who shall win money or property at any game or gambling device, to recover the same by civil action; and it further provides that all bonds, bills, &c., where the consideration is money or property, won at any game or gambling device, shall be void. And in the 8th section it is declared, that bets and wagers on any election authorized by the constitution and laws of this State are gaming within the meaning of the act; but before the enactment of this 8 th section it was held by this court, that though a wager on the result of an election authorized by law was not within the meaning of the statute concerning gaming then in force, (R. C. 1835, p. 290) yet it was void, being contrary to public policy and sound morality. (Hickman v. Benson et al., 8 Mo. 8.) The policy of the law is to discourage bets and wagers as [423] being contra bonos mores, and one of the methods adopted for that purpose is to refuse its aid "to enforce contracts predicated upon such a consideration. This was the view, no doubt, of the law taken by the court below, and hence its ruling with reference to the instructions given and refused. Judge Dryden concurring, the judgment is affirmed.