Arrington v. . Culpepper , 5 N.C. 297 ( 1809 )

Articles of a race made this 30 November, 1805, between Mathew Culpepper and Francis Ward, as follows, to wit: They are to run at Douther's paths, on the Monday before next Christmas, for $200, for which they have staked their notes. Culpepper is to run a two-year-old filly of his, called Dolly Washington, being a sorrel which he had of Abner Foster. Ward is to run a sorrel colt of his, called Golden Rod, which was got by Don Galo, and raised by Mr. William Avent, of the same age, both being considered two years old last spring. They are to run one-quarter of a mile; to start at the end towards the old house, and to run out towards the road. The lowest nag is to carry 136 pounds; the other is to carry 14 pounds for the first inch, and 7 for every other inch over, or in proportion (298) for parts, etc. They both agree that either two of the judges, on the day of the race, shall measure the ground, and whatever they say is a quarter of a mile shall be binding on both parties. They also both agree that the race shall be what is called "a play or pay" race. In evidence of which agreement they have both set their hands and seals, the date above mentioned. MATHEW CULPEPPER. (SEAL.) FRANCIS WARD. (SEAL.)

Witness: ABNER H. HINES.

On the same day the defendant signed and sealed the obligation declared on, which was in the following words and figures, to wit:

If Francis Ward wins the race that he and myself made this day, I promise to pay to Peter Arrington the just sum of $1,000, on or before 25 December next, as witness my hand and seal, this 30 November, 1805.

MATHEW CULPEPPER. (SEAL.)

Teste: ABNER H. HINES.

This obligation was delivered to a third person, as a stakeholder, to be delivered over to the plaintiff in case he won the bet. The race between Ward and defendant was run agreeably to the articles, and Ward declared to be the winner. Afterwards, and on the same day, the stakeholder was directed by the defendant to deliver over the obligation to the plaintiff, saying, "he would have won the race if his rider had rode agreeably to his directions," and the stakeholder delivered the bond accordingly.

It was submitted to the Court, (1) Whether the plaintiff, on the production of the articles aforesaid, and proof of their execution, should not be permitted to read the same in evidence, as proof of the terms of the race bet upon by plaintiff and defendant. (2) Was it essential to the plaintiff's right to recover that he should prove anything relative to the articles, the running and winning of the said race, after the delivery by the stakeholder to the plaintiff, by the direction of the defendant? (3) Whether, if further proof was necessary on the part of the plaintiff, he should bee permitted to show by parol evidence that the articles before set forth were the articles of (299) the race referred to by the writing obligatory declared on.

The case was sent to this Court for the opinion of the judges.

LOCKE and HENDERSON, JJ., were of opinion that the plaintiff was entitled to judgment. But by The act of 1800, ch. 21, declares, in the first section, "that from and after the passing of this act no money shall be recovered at law by means of any bet or wager on a horse race, except a written obligation is produced on the trial, containing the sum so betted or laid on such horse race, signed, sealed and attested by at least one witness." This part of the act has been complied with by the plaintiff, by the production of the written obligation upon the trial, a copy of which makes a part of the present case. The second section declares, "that all horse-racing contracts shall be reduced to writing and signed by the parties thereto at the time they are made; otherwise, they shall be void; and all subcontracts or by-bets on the same shall also be reduced to writing and signed by the parties to such by-bets, or the same shall be void; and on all trials at law, where it may be necessary to give such contracts in evidence, no parol testimony shall be admitted to alter or explain such contracts." The first and third questions may be considered together. There would be no difficulty in the case if the obligation declared on recited the terms of the race made between the defendant and Ward, or referred with sufficient certainty to the articles entered into by them, in which articles those terms are contained. In that case the articles referred to would become connected with the obligation on which the suit is brought, and would be viewed in the same light as if they had been signed by the plaintiff (300) and defendant. The contract between the parties, as well as the sum bet, would be evidenced by a writing signed by the parties. But the obligation merely refers to a "race made," without saying whether the terms of such race were reduced to writing, or existed in the memory of witnesses. In the latter case the plaintiff clearly could not recover. But suppose it to be otherwise (as probably the fact was), and the plaintiff should be permitted to give such articles in evidence: the defendant would be permitted to show that he and Ward made another race on the day referred to or mentioned in the obligation declared on; it would then be a matter of controversy between the parties, to which race the obligation referred, and that controversy could only be settled by the introduction of parol testimony. The Legislature did not intend that horse-racing contracts should in any respect depend upon testimony of that kind, further than to prove the execution of the writings in which they were contained; nor would such testimony in the present case be necessary, if the obligation sued on had either recited the terms of the race or referred with sufficient certainty to any instrument or writing in which they were contained. The act is express that all such subcontracts or by-nets shall be reduced to writing and signed by the parties, or the same shall be void. That has not been done in the present case. The writing signed by Ward and Culpepper has not been signed by Arrington and Culpepper. It is true that this is not strictly required, but it ought to be referred to by the obligation sued on with so much certainty as to preclude the necessity of producing parol testimony to connect them. This cases must be viewed as if the articles had not been signed by Ward and Culpepper, but by Ward and some other person; because, although the defendant and Ward signed them, yet on the same day they might have made another race, and signed other articles, in which case it would be uncertain to which race the plaintiff and defendant referred. As the plaintiff has been fortunate (301) in this race, he is willing to admit that those were the articles, and thinks the defendant should be compelled to do the same because he signed them. But the plaintiff would not deem this reasoning very applicable if he had lost the race and were defendant in this suit.

As to the second question, it is in substance this, whether the plaintiff is in any better situation in consequence of the defendant having directed the stakeholder to deliver the obligation to him, after losing the race, than he would be in, provided he had proved by witnesses that he won the race, and that in consequence thereof the stakeholder had delivered the obligation to him. If such direction by the defendant was to have the effect of making the obligation which had been delivered as an escrow stand as one delivered by the defendant to the plaintiff, and not to be considered as having been delivered as an escrow at all, it would be all-important to the plaintiff. But that cannot be done. The defendant did not himself deliver the bond to the plaintiff (but if he had, it would not alter the case); he only directed the stakeholder to do it. The effect, then, can be no other than if proof tantamount thereto had been adduced. The defendant's confessions out of court place things precisely where they would be if the facts confessed had been proved in court. They amount to this, that he lost the race with Ward; that was the race referred to in his obligation; but that the contract which he made with the plaintiff was defective in point of law, of which defect he claimed the benefit. We are therefore of opinion that the contract has not been entered into agreeably to the directions of the act of Assembly, and that judgment should be entered for the defendant.

(302)