Okerson v. Crittenden , 62 Iowa 297 ( 1883 )

Seevers, J.

I. The amount in controversy being less than one hundred dollars, two questions have been certified upon which it is said to be desirable to have the opinion of the supreme court. The questions are as follows:

“ 1. Can a stakeholder of money, pending the determination of a bet between two parties, who is at the same time made umpire to decide which of the parties is the winner, and to pay the money to the winning party, exonerate himself by paying over the money, without farther securing the consent of the losing party to pay the same to the declared winner, upon the determination of the fact as to which party won?

“ 2. Whether the declaration of the party declared to be the loser, made to the stakeholder, that he is the winner of the bet, and a demand of the entire stake, is such a demand as to amount to a revocation of a bet, rendering a stakeholder liable, in paying the money to the other party thereafter?”

The defendant, as stakeholder, was to determine who had won the wager. He did so, and paid the’money to the winner. Can the plaintiff recover of the defendant, is the question to be determined under the first of the above questions.

It has been held that, where the stakeholder has been notified not to pay over the wager, and lie has not done so a-t the time he is notified, then a recovery may be had. Shannon v. Baumer, 10 Iowa, 210; Thrift v. Redman, 18 Id., 25; Adkins v. Flemming, 29 Id., 122.

The case before us is materially different from the foregoing; for the appellant insists, and the first of the above questions implies, that, before the stakeholder can exonorate himself from liability, he must have obtained the consent of the losing party to pay the amount wagered to the winner. We understand the rule to be: Although the wager be illegal, if the stakeholder has paid it over to the winner before notice or demand against him by the loser, he is exonerated.” 2 Parsons on Contracts, 627.

When the wager was made, both parties consented that the amount wagered should be paid to the winning party, and it yas not essential that such consent should be given again. The first question must be answered in the affirmative.

II. The plaintiff, as we understand, demanded the whole amount wagered of the stakeholder, on the ground that he had won the wager. This cannot be regarded as a revocation or repudiation of the wager. Nor can it be regarded as a notice to the stakeholder not to pay the amount placed in his hands by the plaintiff. No demand was made on the stakeholder for the amount the plaintiff placed in his hands. This he was required to do before the stakeholder could be made liable.

The second question must be answered in the negative.

Affirmed.