Majority
p. 147M‘Cullum against Gourlay.
Headnote
Where a or wager is iosi> ami the money ov property has been fairly pañí, or delivered, the court will not help the plaintiff.Where «.#. dd* liveved to ¡8. tu o firkins of butter, and agreed that if P. was elected governor of the state, J¡¿ should pay a certain price for the butter, oiherwise, he was to pay nothing; and Jp. was not elected, it was held that J$. had no right of action against -/?» tor the butter»
IN error, on certiorari, from a justice’s court. The plaintiff brought his action against the defendant before the justice, to recover the price of two firkins of butter, delivered to the defendant, and for which he gave a receipt to the plaintiff “ to account with him for the same; that is, if Jonas Platt, Esq. is elected governor of the state, the defendant is to pay 39 cents per pound for the butter, and if not, he is to pay nothing.” The justice gave judgment for the defendant.
p. Van .Vechten, for the plaintiff in error.
Rodman, contra.
The butter was delivered, in the first instance, to the defendant, the winner, and the payment Was, to depend on the event of the election of governor. The plaintiff lost the bet, and, by the terms of sale, he was not, in that event, to be paid any thing for the butter. This case does not appear to come within that bf Bunn v. Riker.[1] The plaintiff h'>s now no right of action; for potior esi conditio elefendenns» The courts will net help
* 4 Johns. Rep. 426 .
p. 148
the plaintiff to obtain relief from a bet, when the money or property has been fairly paid ór delivered. (1 East, 98. g Term Rep. 75. 2 Comyn on Contracts, 120.)
The judgment must be affirmed.