Majority
p. 327Hunt and others against Knickerbacker.
Headnote
of this state. jsr0 action car. ™acoiUract ^¡foftickets’ia a lottery, not. authorized liy the legislatureTHIS was an action on the case. The declaration contained three counts. The first count stated, that the plaintiffs were managers of a certain lottery, allowed and established by the legislature of the state of Connecticut, . , _ O , . , m May, 1804-, &c. (describing the name and object of the lottery 5) that the plaintiffs, on the 16th June, 1806, were possessed of a large number of tickets in the third class of the said lottery, which was legally established by the plaintiffs, as managers; and according to the scheme of the said lottery, the price of the tickets was four dollars each, at which price all the tickets in that class were sold; and the plaintiffs averred, that the tickets were well worth four dollars each, &c. and that on; &c, the plaintiffs at Poughkeepsie, in the county of Dutchess, delivered to the defendant, at his special instance and request, 112 tickets, in the third class of the said lottery, from number 375, to number 469, inclusive, to sell for the said plaintiffs at four dollars, on a commission of 2 1-2 per cent, and to return those tickets to the plaintiffs, on demand, which the defendant should not sell and that the defendant then and there received the said 112 tickets of the plaintiffs, and in consideration thereof, and of the sum of 2 1-2 per cent, on the amount of those tickets which the defendant should sell, the defendant,
p. 328
undertook, and to the plaintiffs promised, to sell the said tickets for the plaintiffs, if the same should be saleable, at four dollars each, and to return those of the said tickets to the plaintiffs, which the defendant should not sell; and the plaintiffs averred, that the defendant undertook, and promised to return the tickets not sold, in a reasonable time, on demand, &c.
The second count stated, that the plaintiffs being in possession of 112 tickets, in the third class of a certain lottery, &c. on the 16th June, 1804, at Poughkeepsie, and at the special instance and request of the defendant, delivered to him the said 112 tickets, to be sold, &c. and the defendant, in consideration, &c. undertook to sell the tickets, at four dollars each, and to return to the plaintiffs, in k reasonable time, on demand, such of the tickets as were not sold, retaining his commission, &c.
The third count, was for money had and received, to the plaintiffs’ use*
Plea, the general issue*
The cause was tried at the Dutchess circuit, in' August, 1807. At the trial, the plaintiffs proved, that they were appointed managers of the lottery in question, and that the price of the tickets in the third class, were four dollars each. The drawing commenced about the 21st April, 1807, and was finished about the 1st July, following. About the time of the commencement of the drawing, a number of persons, associated together for the purpose, purchased of the managers all the tickets then on hand and unsold, at four dollars each, with the usual deduction of 2 1-2 percent, the number of which tickets so purchased did not appear. The scheme of the lottery, as established, was also proved.
The plaintiffs then offered the following letter of the defendant, to Hunt, one of the plaintiffs, which was objected to, but admitted by the judge.
p. 329
“ Red Hook Landing, Sept. 7, 1807.
“ Sir,
u On the 24th April last, a letter was handed to me, which was directed to Knickerbacker and Hamlin, giving notice that the Canaan lottery, was to commence drawing on the 21st April, and requesting the tickets unsold, to be returned by mail; but as you hold my receipt for the tickets you left with me, I could not with propriety send them, unless I had my receipt, or a letter directed to me. I however, seeing that the lottery had, three days since, commenced drawing, immediately put up the tickets, and wrote you, but there has no letter come since. I was told that you made a practice of calling on those with whom you left tickets, and that you would no doubt call on me, and furnish a list of prizes. I should be glad if you would, soon call or send.”
The plaintiffs also produced and proved, the act of the legislature of the state of Connecticut, authorizing thg lottery, and appointing the plaintiffs as managers, who were required to give a bond as security, and to take an oath for the faithful discharge of their trust; but whether they had given the bond, or taken the oath, did not appear.
In April, 1808, Canfield, one of the plaintiffs, called on the defendant, and demanded payment for all the tickets, which the defendant refused. The defendant offered to return the tickets unsold, being 21 or 22, which Canfield refused to accept. The defendant admitted that he had received a letter from Hunt, one of the plaintiffs, addressed to Knickerbacker and Hamlin, which letter was produced, and is as follows ;
“ Canaan, 17th April, 1807.
M Gentlemen,
u You are requested to return what tickets of the third ..class of the Qanaan lottery, by the mail this week, as
p. 3301. The plaintiffs should have brought trover, and not an action to recover damages, for the breach of the agreement. An action for the tickets, as sold and delivered, would also lie.[8] If the plaintiffs recover the value of the tickets, in the present form of action, the property in them will still remain unchanged ; and the managers of the lottery may bring an action to recover the tickets themselves. This is a case of a mere deposit; and there is no advantage in this form of action, which could not be obtained by an action of trover, or for tickets sold and delivered»
are unsold's as the lottery begins drawing on Tuesday,, the 21st instant.”
It was proved, that on the receipt of this letter,. Knickerbocker,, requested one Davis to inform the plaintiffs, that the tickets were not sold, and that he was ready to deliver them at any time when" they should send him. the receipt given for the tickets.
The judge charged the jury, that under the circum-. stances of the case, the letter written and sent by Hunt, to Knickerbocker and Hamlin,, was a sufficient request, to render it obligatory on the defendant, to return the tickets by mail; that as he had not done so, he had made himself liable, in this action, for the whole number of tickets ; and that the plaintiffs were entitled to recover for the 112 tickets, at four dollars each, with interest, after the time when the. prizes in the lottery were payable, deducting the commission of 2 1-2 per cent, and the jury found a verdict^accordingly.
It was agreed, that if the court should be of opinion, that the plaintiffs cannot recover in this form of action; or because the contract was illegal, then a nonsuit was to be entered ; but if the court should be of opinion that the jury were misdirected, then a new trial was to be granted. '
Evertson, for the defendant.
p. 331The boundaries of the different forms of action should be carefully observed.[8] 2. The contract was illegal, being against the intent and spirit of the act to prevent private lotteries.[9] The declaration alleges, that the defendant did not sell or return the tickets. It is a contract for the sale of tickets in this state, in a lottery not authorized by the legislature. Where the object of the contract is unlawful, no action can be maintained upon it.[10] Nor will the action be supported, if the object of the contract is against public policy.[11] The mischief intended to be prevented by the statute, will exist, in as great a degree, if tickets in lotteries established in other states are allowed to be sold here, as if private lotteries were created by our own citizens. 3. The receipt produced did not support the averment in the declaration; nor was it proved who were the managers of the lottery. The plaintiffs having made the averment voluntarily, are bound to prove it, and the receipt does not excuse the necessity of such proof.[6] Again, there was no legal demand of the tickets ; and the refusal of the defendant was, therefore, justifiable. The letter was addressed to Knickerbacker and Hamlin, not to the defendant alone, and was signed by Russel, without stating that he was manager, or that he had any authority to receive the tickets.[7] Then, as to the amount of damages. The value of the tickets in Connecticut, is not the true measure of damages. The question is, what have the plaintiffs lost by not having their tickets returned ? Shall the plaintiffs be allowed to recover the value of the tickets, and be also entitled to receive all the prizes those tickets may have drawn in the state of Connecticut P The only just measure of damages would be to deduct the price of the tickets from the amount of the prizes drawn and received. 1. The action well lies in its present form. There can be no reasonable objection to
Rugglcs, contra.
p. 332stating the ground of the action more fully than it would be in trover. The defendant undertook to return the tickets unsold ; and the action is to recover damages for the breach of that undertaking. The value of the tickets was fixed, by the receipt, at 4 dollars. If goods are entrusted to a person to be sold, at a fixed price, or returned, if not sold, after the lapse of a reasonable time, and he refuses to return them on demand, an action of assumpsit lies.[8] The letter to Knickerbacker and Hamlin was a sufficient notice and request to return the tickets. 2. The act to prevent private lotteries, does not apply to the sale of tickets in lotteries, established in other states. Our act declares private lotteries to be public nuisances ; but a lottery in another state cannot be a nuisance here. Again, the judges are directed expressly to charge grand juries to inquire of offences against the act, and to indict the offenders. This cannot apply to lotteries in other states. Besides, this was a public lottery in Connecticut, established by the legislature of that state. There is a similar statute in England,[9] against private lotteries, yet it has never been suggested, that a sale of tickets in an Irish lottery, established by the Irish parliament, was not legal,[10] Actions for wagers are maintainable, if not against public policy. Money paid for insuring lottery tickets, though such insurance is illegal, may be recovered back from the keeper of the lottery office.[11] The parties are not considered as in pari delicto. The act is to be taken strictly, according to its letter, and not extended further. The defendant is very conscientious, not to return the tickets, because the sale of them is illegal; yet his conscience allows him to keep the money". But he stands in a similar situation with a lottery-office keeper in England; and the courts there, though the insurance is illegal, will not ■allow the keeper of such insurance office, to retain the-money.
delivered the opinion of the court. One question made on the argument in this cáse, relates to the legality of the contract, upon which the action is founded, and goes to the whole merits of the plaintiff’s claim. The cause of action arises out of a receipt given by the defendant, on the 16th day of June, 1806, by which he acknowledges to have received, 112 tickets in the Canaan meeting-house lottery, to sell at four dollars each, on a commission of two and a half per cent, and those not sold, to be returned. Both from the declaration and testimony, it is manifest, the tickets were delivered and received, for the purpose of being sold in this state. Our act (Rev. Laws, v.1. 35.) declares, that every lottery, other than such as shall be authorized by the legislature, shall be deemed a common and public nuisance; and the selling or purchasing any ticket or tickets of any lottery, thereby prohibited, subjects the offender, on conviction, to the payment of ten pounds, for every such offence. Every lottery not authorized by the legislature, is a private lottery within the purview of this act. The mischief intended to be guarded against, appears from the preamble. “ Whereas experience has proved, that private lotteries, occasion idleness and dissipation, and have been productive of frauds and impositions.” Although the tickets in question, were in a lottery established in the state of Connecticut, yet the sale of them here, would be productive of many of the mischiefs contemplated by the legislature. The special exception as to lotteries established under the authority of the United States, affords a pretty strong inference, that the prohibition was intended to extend to lotteries established in sister states. It is, at least, against the policy of our statute, to permit the sale of such tickets.
If the contract be illegal, or against the policy and. spirit of the act, courts of justice ought not to lend their aid to enforce it. The present action is founded upon the contract, and goes in affirmance of it; and w
p. 334
not brought to recover back the tickets, or the money a¿ * tually received on the sale of them. The plaintiffs claimed, and have recovered the full value of the tickets, at four dollars each, on the ground that the defendant had made them his own by not returning them pursuant to his contract. It is a general rule of law, that all contracts or agreements which have for their object any thing which is repugnant to the general policy tif the common law, or contrary to the provisions of any statute, are void, (1 Comyn on Con. 30.) and not to.be enforced. In the case of Holman v. Johnson, (Cowp. 343.) Lord Mansfield says, the objection that a contract is immoral or illegal, as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not, however, for his sake, that the objection is ever allowed, but it is founded in general principles of policy ; and whenever from the plaintiff’s own stating, or otherwise, the cause of action appears to arise from the transgression of a positive lav/ of the country, he has no right to be assisted. The same principle has been fully recognised by this court, in the case of Belding v. Pitkin. ( 2 Caines 149 .) It is there said to be a principle too salutary and well settled, to be in any measure infringed, that courts of justice ought not to assist an illegal transaction in any respect. It is considered in the English courts, to be illegal, if not immoral, in the subjects of one country td enter into a contract with the subjects of another, to assist the latter, in defrauding the revenue laws of his country; (5 Term Rep. 600.) and they will not sustain, actions upon contracts entered into with that view. A contract, which in its execution, contravenes the policy and spirit of a statute, is equally void, as if made against its positive provisions. (3 Term Rep. 23.) The preamble and provisions of our statute, point out, very clearly, that the intention of the legislature was to prohibit the establishment of any lottery, or the sale- of any tickets not specifically sanctioned by the legal authority of this state."
p. 335
No case, I believe, can be found, where an action has been sustained, which goes in affirmance of an illegal contract; and where the object of it is to enforce the performance of an engagement prohibited by law. Wherever an action has been sustained against a party, to prevent him from retaining the benefit derived from an unlawful act, the action proceeds in disaffirmance of the contract ; and, instead of endeavouring to enforce it, presumes it to be void. ( 2 Black. Rep. 1073 . Cowp. 197. 790. 1 Hen. Black. 65.
Without, therefore, examining the other questions made on the argument, I am of opinion, that the present action cannot be sustained; and that pursuant to the stipulation in the case, judgment of nonsuit must be entered.
judgment of nonsuit»