McQuesten v. Steinmetz , 73 N.H. 9 ( 1904 )

It is conceded that this action cannot be maintained if the defendant, with the plaintiff's knowledge and consent, carried on a gambling business upon the leased premises; and that a bet or wager on a horse race is a gambling contract within the meaning of our statute. P. S., c. 270, ss. 6, 16, 18. The plaintiff, however, contends that the business there carried on was not of this nature; that the wagers or bets in question were not made at Nashua, but in the state of New York; and that what was done at Nashua was lawful.

A bet, like an ordinary contract, involves a concurrence of wills; there must be an offer and acceptance thereof in accordance with its terms, and the acceptance will not be complete until it is actually or constructively communicated to the party making the offer. Busher v. Insurance Co.,72 N.H. 551; Lescallett v. Commonwealth, 89 Va. 878. It therefore becomes necessary to ascertain where these contracts or bets were made; for if made in New York, the business transacted at Nashua was not in contravention of the statute above cited.

Had it appeared that parties in New York telegraphed proposals offering to bet upon horse races with persons in Nashua, who accepted the same by telegraph, the contracts would be completed at Nashua when the messages of acceptance, directed to the parties in New York, were delivered at the telegraph office. Busher v. Insurance Co., supra; Davis v. Insurance Co.,67 N.H. 218; Lescallett v. Commonwealth, supra. But the case discloses that the transactions were not so conducted; that the defendant, acting as agent for persons at Nashua, upon receipt of their money telegraphed it to various persons in New York, who there wagered the money as directed. Under these circumstances the bets were made in New York, and the business conducted by the defendant at Nashua was lawful. Whether a different result would be reached if it appeared that betting on horse races in New York was illegal, it is unnecessary to consider.

Some states have enacted laws prohibiting persons from receiving money to be transmitted to places within or beyond their limits, to be bet on horse races (see State v. Harbourne, 70 Conn. 484; State v. Stripling,113 Ala. 120); but we are not aware of any such statute in this state.

In accordance with the agreement in the case, the order is,

Judgment for the plaintiff for $66.66.

All concurred.