Paulk v. Jasper Land Co. , 116 Ala. 178 ( 1896 )

HARALSON, J.

This action was commenced in the court below by the appellant against- the appellee ; and its object, as shown by the several counts in the complaint, was to recover money had and received by the defendant for the use of the plaintiff. The contract under which the^ money was paid, related to a sale of land by the defendant to the plaintiff, and the right of recovery was sought on the grounds, that the contract was void under the statute of frauds ; that it did not designate what land was sold, and was void on that account for uncertainty; that the defendant, the owner of the lands, which it wished to divide into town lots, did not have it surveyed and a plat made thereof, duly certified, acknowledged and recorded as required by the act of February 28, 1887 (Acts 1886-87, p. 93) ; and that the defendant failed to perform its part of the said contract.

The contention here relied on by appellee is, and the defense relied on below was, that the contract under which the appellee received the money was a gambling contract, in that the money paid by the appellant to appellee was for chances in a lottery which the appellee proposed to set up. Conceding for the purposes of the case, that appellant’s right of recovery to be otherwise indisputable, it must be admitted, that if the contention of the appellee be true, there can be no recovery in this action. At common law, gaming, when not conducted so as to be a public nuisance, was not unlawful, and the winner might even maintain an action of assumpsit for the stake won. With us, it is altogether a statutory offense. — 8 Am. & Eng. Encyc. of Law, 1034 ; Tindall v. Childress, 2 Stew. & Port. 250; Samuels v. Ainsworth, 13 Ala. 368.

Section 1742 of the Code provides that, “All contracts founded in whole or in part on a gambling consideration are void ; and any person who has paid money, or delivered anything of value, lost upon any game or wager, may recover such money, thing, or its value, by action commenced within six months from the time of such payment or delivery.” That a lottery is a species of gambling we need not stop to consider. It is defined by Bishop, “to be any scheme whereby one, on paying money or other valuable thing to another, becomes entitled to recover from him such a return in value, or nothing, as some formula of chance may determine.” Bish. on Stat. Crimes, § 952. For a full discussion of the subject, unnecessary to be repeated here, reference is made to our cases. — Buckalew v. The State, 62 Ala. 384; Yellow Stone Kit v. The State, 88 Ala. 196; Reeves The State, 105 Ala. 120, and the authorities referred to in those cases.

The facts are undisputed, appearing as they do in the contract set out in the second and following counts in the complaint. Upon them, there can be no doubt that the scheme for selling the lots was a lottery.

The section of the Code copied above, which authorizes money lost at gaming to be recovered, requires suit to be brought therefor within six months from the time of its payment. This requirement, as we have held, is not in the nature of a statute of limitations, which merely takes away the remedy, necessary to be pleaded in bar ; but under the provision, the right to recover, or the right of action, depends upon bringing the suit within the time prescribed. Otherwise, the plaintiff can claim only such right as he had at common law, which gave him no right of recovery. — Samuels v. Ainsworth, 13 Ala. supra. This suit was not brought within the time prescribed by law.

If the court erred in its rulings as to plea number 2, it was error without injury, since under the contract as set oiit in each count of the complaint except the first, the plaintiff has no right of recovery. He declined to join issue on the plea of the general issue to the first count, and to try the case thereon. There was no error, therefore, in rendering judgment for defendant.

Affirmed.