Paine v. France , 25 Md. 163 ( 1866 )

Bowie, C. J.,

delivered the opinion of this Court:

The complainant, a citizen of New York, claiming as assignee of the defendants, of one-half interest ill all avails and profits of a contract entered into by the latter, oil the 18th duly, 1819, with the Commissioners of Lotteries of the State of Maryland, filed In’s bill on the 24íh Jañ’y, 1853, prayin.g that the defendants, (one of whom, Morris, does not reside in 'die State,) may answer, and “set forth the amounts of their sales of tickets in the Maryland lotteries by said contract referred to, and their sales of licenses for soiling tickets in Baltimore, and of those for selling out of the city of Baltimore and elsewhere in said State; that the complainant may be paid his half of the avails of said sales, after such deductions as the Court should deem equitable, and for other and further relief.

The contract was exhibited as a part of the bill, and Will be hereafter more particularly referred to.

The respondents admit the contract as exhibited, and a conditional assignment of one-half of the avails and profits by them, as survivors of George Cook; but insist tlie complainant did not comply with the conditions of his agreement ; that the consideration failed, and they were not bound ?n equity to perform tbo contract.

They deny that the business was carried on under that contract, but allege that the same was superseded by a new contract entered into between the Commissioners of Lotteries and fine respondents, which took effect the 1st of April, 1852, since which time the Maryland lotteries have been drawn under the latter.

The respondents aver, the complainant lias received more than one-half of all avails of said contract, during its existence, and dony they are indebted to him in the amount charged, or in any other amount.

A general replication was filed and commission issued, and testimony taken, mucli of it relating- to' sales- ottf ofitie' State, to which exceptions-wore filed by the* appellees, and' in connection with which' an agreement was- entered into* between the solicitors of the-parties; “that’oa the 18th of July, 13849,.(and from that day to the present’time, 24th ofNovem-ljer,,1856,) the drawings of the- Maiylatnd lott'eries, and the' sales of schemes and of tickets-in the said lotteries', were for~bidden in the-' United States, o-utsidb1 of Maryland, by the-statutes o-f'tfie several States of the- Union; add'this agree* mentis to avail as- ifc'the said.statutes-had been-given'- iii> evidence.”

O-h the thirteenth day of July, l'SÜTy tire ease being sub-mitted and argued, upon bill, answer and depositions; the' Circuit Court of Baltimore city decided that the defendants-were liable to account' to the- complainant for all avails anc^ profits-arising from ths- enjoyment of the lottery privileges-'during the term-mentioned in the- original-contract,-but that-the account should be confined to- sales- made within the* State, and sustained the exceptions to-the'-1 evidence-taken by the defendants as to the sales-witiiott-ttha State:

The cause'was-referred to the-' auditor tb state att' aeeountp. ih conformity with the opinion-; of the' Court!- Afterward s-;,the case- coming up upon exceptions to- the* accounts' and'! reports of the auditor,. the Court remanded’the same for?correction, and “ to state the same in conformity with the-* views of the Court expressed in its opinions of Julyv.1857,» and of this day (February, ISGO.)”’

At July term,-ÍS64, the appellant By his' counsel, -filed* Iii&'petition-'praying the cause might he remandedío the auditor;,, that the orders of the 13-th of July, 1857, and'ISth of February, 1860, might be rescinded,.and other-accounts statfed in?! conformity with the prayer of the petitioners, which petition:' being dismissed, the cause was remanded to the auditor to> state, an account in-cojiformity to the principles of the orden' <of reference heretofore made in the premises. An ‘account 'being thus stated and returned, (after exceptions thereto by 'the complain ant,) was by decree of the Court finally ratified, ¡and the complainants bill dismissed, from which decree, this •appeal is taken.

From this synopsis of the 'cause, it is apparent the main ■points are found in the force and effect of dhe contract, and ■the allegations and prayer ef the bill.

Neither the one nor the other of these seems'to contemplate ¡a dealing in lottery tickets rbeyend the limits of the State Independently of all questions arising from the comity of •Courts or States, or the eoaHict of laws of the several States, tlie letter of the contract limits its operations to tlie State.

The first covenant of exhibit A, oa the part of the commissioners, is to deliver to the parties <©f the second part, etc.) “ eight annual licenses in each of said years for .the sale rof lottery tickets in khc ci ty of Baltimore, * * and for the further sum of--, thirteen other licenses each year for the ¡sale of said tickets in the State of Maryland, out -of the city ■of Baltimore,'” * * * •* to authorize the said parties of tlie ■second part, etc., “ to sell, either in the city «&f Baltimore or ■out of it, in the'State Mlaryland, as the ease may be, tickets <or parts of tickets, etc.

There is no clause or word on the part of the eommission>ers enlarging the -area <©f sede.

The covenants on the part of the respondents must be •construed with regard to those of the parties of the first part, and by presumption -of law would be limited to the ¡same subject matter. The second covenant on the part of the respondents is, that they will pay to the parties of the first part five per cent. “ on the amount of tickets at scheme prices, sold hy them or their agents in the Maryland Consolidated Lotteries,” and they undertake that the sum shall amount during eaeh ef three years, to tlie sum -of $25,000, ■exclusive of expenses, and to pay the difference between such sum, and the said per eentage, at the end of each of said years; that a correct account of such sales shall be furnished, “ sustained by such proof as the parties oi the second part require from their distant agents,” etc.

(Decided June 28th, 1866.)

It was argued that as the last cited covenant secured the State five per cent, upon tho amount of sales, and the respondents had guarantied it should amount to a certain minimum, it was the interest of the State, and therefore the intent of the contract, that the sales should ho made wherever they could he. This deduction is hardly consonant with the rules of law, which require all parts of tiro contract to harmonize, if possible.

A clear and manifest intent, is not ho disregarded to obtain some pecuniary advantage, by a construction opposed to that intent, nor can it be presumed that the legislation and policy of other States was unknown to the State of Maryland, and that she sought to enrich herself at the expense of her neighbors.

Tbe complainant having made the contract a part of h;s bill, and interpreted it as we have, as far as ho professed to set forth its terms, the relief prayed is based upon the same theory, and expressly limited to the State.

It was very properly said by the 'Judge below, that there had been no change in tho hill since it was originally filed, no application to amend in conformity with facts disclosed by the answer or the evidence.

If these furnished grounds for relief, the case as made by tho bill did not, and it is only on tbe hypothesis, that tho contract relied contemplated sales out of the State, that tho appellants, could complain.

Our opinion is, that such a position is untenable, and without deeming it necessary to examine the other points mooted, wo will affirm the decree below, dismissing the bill, with costs to the appellee.

Decree <ijjmned.