Kitchen v. Greenabaum

Sherwood, Judge, delivered the opinion of the court. This was an action to recover six hundred dollars, alleged to have been fraudulently obtained by defendants from plaintiff. Plaintiff states in his petition, that about the 5th day of December, 1872, he owned a ticket in an enterprise known as the “Second Grand Gift Concert, for the benefit of the Public Library of Kentucky,” which ticket was numbered 42,464, and which entitled the holder thereof to whatever prize or gift the same might draw upon a distribution, by lot, among the ticket holders in said enterprise, which said drawing was to take place, and did take place, on the 7th day of December, 1872, at the City of Louisville, State of Kentucky, and that at said distribution, or drawing, the said ticket, numbered 42,464, and of which plaintiff was at that time the owner and holder, drew a gift or prize of the value of six hundred dollars, to which the plaintiff was entitled as the owner of said ticket; that, at the time of said drawing, he was at his home in Saline county, Missouri, and that afterwards, on December 12th, 1872, not being informed of the result of said drawing, he was induced by the false and fraudulent representations of defendants, who had confederated for the pur- ■ pose, to sell said ticket to the defendant, Jacob Greenabaum, who afterwards, in the month of December, 1872, obtained “said prize,” to-wit: the said six hundred dollars. Plaintiff also states that on the said 12th day of December, having no knowledge whatever of the result of said drawing, he inquired of the defendant, Moses Greenabaum, in his storehouse, in Saline county, Missouri, concerning the same, who informed plaintiff that he had a paper containing a list of the numbers of the tickets which had drawn prizes in said distribution or drawing, and did produce a newspaper called the Missouri Republican, containing a list of the numbers of the tickets which had drawn prizes amounting to seventy-five dollars and upwards; that after said paper was produced, and said Moses Greenabanm proposed to examine the list and ascertain whether plaintiff’s ticket had drawn a prize, the — 113 — plaintiff gave him the number of his ticket, and said Greenabanm then carefully examined the paper and falsely represented to plaintiff that his ticket was not upon the published list, and that if it had drawn a prize, it was a very small one, and not one of those published; that said Moses Greenabanm left his store-room and confederated with the defendant, Jacob Greenabanm, for the purpose of cheating plaintiff, and that in pursuance of said fraudulent purpose, the defendant, Jacob Greenabanm, knowing that plaintiff had been deceived by the false statements of said Moses Greenabanm, came into said store-room and represented to plaintiff that there was a chance of his ticket, numbered as aforesaid, being one that had drawn a prize of ten dollars, and offered to pay plaintiff five dollars for said ticket, the said Jacob Greenabanm well knowing at the time that said ticket had drawn a prize of six hundred dollars; that plaintiff, being mislead by the said false and fraudulent representations of said Jacob and Moses Greenabanm, and believing the statements made by them to him that his ticket had not drawn a prize exceeding ten dollars, accepted the offer of said Jacob Greenabanm, and delivered up said ticket to him ; and that said Jacob Greenabanm after-wards presented said ticket to the managers of the said Gift Enterprise, and received thereon the sum of six hundred dollars. Plaintiff asks that the sale of said ticket by him to said Jacob Greenabanm be declared fraudulent and void and that he have judgment for the sum of six hundred dollars, and all proper relief. To this petition the defendants filed their demurrer at the return term of the writ, assigning as ground of demurrer that the petition does not state facts sufficient to constitute a cause of action ; because the petition shows that the plaintiff’s action is based upon an illegal transaction, viz: the sale by him of a lottery ticket which sale is prohibited by the constitution and laws of the State of Missouri, and the plaintiff cannot establish his case without the aid of such illegal transaction, or without showing that he has broken the law. — 114 — • The court sustained the demurrer. No amended petition being filed, judgment was then rendered for the defendants, to reverse which plaintiff brings the case here by writ of error. The Constitution of this State prohibits the legislature from authorizing any lottery, and forbids the allowance of the sale of lottery tickets (sec. 28, Art. 4, Const, of Mo.) ISec. 28, Art. 8, Wagn. Stat., p. 563, vol. 1, is as follows: “Any person who shall sell or expose to sale, or cause to be sold' or exposed to sale, or shall keep on hand for the purposes of sale, or shall advertise or .cause to be advertised for sale, or shall aid or assist, or be in anywise concerned in the sale or exposure to sale, of any lottery ticket or tickets, or any share or part of any lottery ticket in any lottery, or device in the nature of a Tottery, within this State or elsewhere, and any person who shall advertise or cause to be advertised, the drawing of any scheme in any lottery, and shall be convicted thereof in any court of competent jurisdiction, shall for each and every such offense forfeit and pay the sum not exceeding one thousand dollars.” The petition in this case clearly discloses that the ticket in question falls within the purview of the above statutory provision, and the sale, therefore, was in violation of law. No importance is to be attached to the fact that the ticket, prior to its sale, had drawn a prize, the statute under consideration being sufficiently comprehensive to embrace sales made subsequently, as well as anterior to the drawing. Otherwise, the beneficent purposes of the statute might be1 very readily evaded, by simply making sale of the tickets after the drawing, but before the discovery of the winning numbers! It will be observed, that the statute referred to, levels its denunciations and penalties, not only against those who sell lottery tickets, but against “any person who shall * * * be in anywise concerned in the sale or exposure to sale.” It follows from this that the defendants as well as the plaintiff, are guilty of violating the law. And the rule which generally prevails when either party to the illegal contractor transaction applies — 115 — to the courts for aid, has been correctly stated by the counsel for defendants. The maxim, however: “In pari delicto, potior est conditio defendentis et possidentis,” is not of universal prevalence. Among the exceptions is that of a mere stake-holder, who having received money under an illegal contract, will not be allowed by asserting such illegality to retain the money thus obtained. And the case of Wimer vs. Pritchartt, cited for plaintiff, (16 Mo., 252), is one of that sort. Another exception arises where the parties to the transaction, although concurring in the illegal act, are regarded as not equally guilty, in consequence of fraud, oppression, imposition or hardship, practiced by one party upon the other, thereby obtaining an unconscionable advantage. Under such circumstances, courts of equity have not hesitated to interfere in behalf of the less guilty party, and against the chief mover in the unlawful enterprise. (1 Sto. Eq. Jur., § 300, and cases cited.) These remarks are applicable to eases even where the contract is already an executed one, but must not be understood as applying to those involving moral turpitude, (for there no inquiry will be made into the relative guilt of the contending parties), but to those where the offense is merely malum prohibitum and is not in its nature essentially or necessarily immoral, nor violative of any general principle of public policy. Courts have never yet ventured to define in specific terms the meaning of the phrase, “ public policy but the general rule has been laid down “'that, whenever any contract conflicts with the morals of the time, and contravenes any established interest of society, it is void as being against public policy.” (1 Story on Const., § 675.) Sometimes it is of difficult determination whether a contract or transaction is contrary to public policy. No such difficulty or doubt can arise in reference to the present ease, for the reason that both our organic and statute law have placed the seal of their emphatic condemna-tion upon the sale of lottery tickets, and upon “every device in the nature of a lottery;” thus settling beyond all opportunity and occasion of cavil the policy of this State. — 116 — Instances have also occurred where both parties were in pari delicto, in which redress has been afforded. This, however, has been done only when the controlling exigencies of public policy have demanded that aid should be thus granted —(1 Sto. Eq., § 293, and cases cited; Bellamy vs. Bunow Ca., T. Talbot, 97; Harrington vs. DuChalet, 1 Bro. C. C., 124; Woodhouse vs. Meredith, 1 J. & W., 224; Hartwell vs. Hartwell, 14 Ves., 811; Vauxhall Bridge Co. vs. Earl Spencer, 2 Modd., 356 [Am. Ed. 527]; St. John vs. St. John, 11 Ves., 535.) But no instance can be found where public policy has been contravened in order to grant relief in a particular case; though frequently relief, as before stated, has been afforded out of regard to what the legislative will has declared pro-motive of the public welfare. (Com. on Contr., 424.) Taking this view of the subject, we should be wholly unmindful of the settled public policy of our State, did we hold the plaintiff entitled to recover upon the ground that he was not of equal guilt with the defendants. It must be admitted that the decisions of courts, both in England and this country, have greatly lacked uniformity in regard to the topic before us. Many refinements and fine spun distinctions have been made in the endeavor to adapt the rules of law to the hardships of particular cases. Lord Thurlow at one time seems to have thought that in all cases where money was paid for an illegal purpose, it might be recovered by a particeps criminis (Neville vs. Wilkinson, 1 Bro. Chy., 543.) This doctrine, it will be at once seen, is tantamount to a total subversion of the maxim to which reference has been made, and has not met with approval in modern adjudications. (1 Sto. Eq. Jur., § 298, and cases cited; Taylor vs. Chester, L. R. 42, B. 309; Meyers vs. Meinrath, 101 Mass., 367; Horton vs. Buffington, 105 Mass., 400; Buck vs. Albee, 26 Verm., 84.) We have all felt strongly desirous of defeating the fraudulent machinations of these defendants, which stand confessed bv their demurrer, and of compelling them to disgorge their ill-sotten ¡rains ; but have been unable to do this without ut — 117 — terly disregarding well established principles of the common-law, and ignoring the plain behests of our own statutory enactment by lending our sanction to a recovery which would have for its basis an executed contract, bearing on its front the stigma and taint of illegality. But aside from considerations of this nature, were the plaintiff allowed to recover in the case at bar, we are met with the ever recurring question : How far are we to go, and where un- ' der like circumstances, is the limit to be. assigned to judicial interposition? There is manifestly none; and if the plaintiff is permitted to succeed in this action, there is no refuge from this result; that upon asimilar complaint to his, being filed, courts might, in effect, be called on to sit as the arbiters of the gaming table or the umpires of the prize-ring. The safer, and, the only consistent course therefore, is to be found by treading in the ancient ways of the law, and apart from well ascertained exceptions, giving faithful adhesion to the maxim on which defendants have relied. The judgment is affirmed. All the judges concur.