Whitman v. Fournier , 233 Mass. 154 ( 1919 )

De Courcy, J.

The defendant purchased by a conditional bill of sale from Thomas Howard Company (not incorporated) a piano, fourteen dozen assorted pieces of silverware, and some advertising literature, intending thereby to carry on a voting contest in his store, for the purpose of increasing his business. He also signed an instalment promissory note for $400 in payment for the goods. Howard indorsed and delivered the note to ICnauth, Nachod and Kuhne, bankers, as security for a loan; and later they assigned it to the plaintiff, to enable him to bring this action thereon to enforce collection. A verdict was rendered for the plaintiff for the balance due, with interest.

The contention of the defendant is that the note was given to promote a lottery. We assume, in his favor, that this question was raised by his first request and by his exception to the judge’s instruction to the jury, that this prize contest did not constitute a lottery. Our statute which prohibits the disposing of any property of value by way of lottery, (R. L. c. 214, § 7,) does not attempt to define the word. But, as was said in Commonwealth v. Mackay, 177 Mass. 345, 346: “Both in the popular and legal sense, the word Tottery’ signifies a scheme for the distribution of prizes by chance.” For various definitions formulated by lexicographers and courts see Cent. Dict.; Bouvier’s Law Dict.; 17 R. C. L. 1209; 3 Words & Phrases, (2d ser. 191.)

While some of the methods suggested for conducting the piano contest may well be criticized, so far as appears there was no gambling element of lot or chance in the transaction, and no evidence on which the jury would be warranted in finding that essential/ element. See Commonwealth v. Sullivan, 146 Mass. 142; Commonwealth v. Sisson, 178 Mass. 578; Opinion of the Justices, 226 Mass. 613, 616. All persons concerned knew in advance that the contestant having the most votes at the end of the contest would be entitled to the piano or other prize. The only way to acquire those votes was by purchasing the merchandise of the defendant, or by procuring them from other contestants.

Further, it does not appear that the bankers knew anything about the prize contest; and even if. the transaction were tainted with illegality, that would not prevent recovery on the note by an innocent holder for value. Fuller v. Hunt, 182 Mass. 299.

The judge was not bound to adopt the language of the defendant’s second request, which was framed in an argumentative form and emphasized facts selected in his interest, Altavilla v. Old Colony Street Railway, 222 Mass. 322; and it is to be presumed that appropriate instructions were given to the jury.

Assuming that the genuineness of the indorsement of the payee was put in issue by the defendant’s answer (see R. L. c. 173, § 86; Whiddon v. Sprague, 203 Mass. 526), there was ample evidence to establish it in the depositions of Knauth and of Knust.

Exceptions overruled.