Hall v. Bergen , 1854 N.Y. App. Div. LEXIS 117 ( 1854 )

By the Court,

Johnson, J.

Though differently inclined upon the argument, a careful review and consideration of the provisions of the contract, and particularly that upon which the action is founded, have satisfied me entirely that the referee was right in his conclusions, and that it is in the nature of a stake or wager, and consequently void by statute. The plaintiff paid $800 for one half the animal, and, after the contract, owned her as tenant in common' with the defendants. It is then provided, as part of the contract of sale, that the mare shall, on or before the 15th of August next, trot in harness around the Rochester Union Course in two minutes and thirty-four seconds ; and in case she fails or is unable to perform, that then the defendants shall deduct or pay back to the plaintiff one half of such sum as such failure may detract from the market value of said mare. The action is brought upon this provision, to recover back, the complaint alleging a failure of the mare to perform, after repeated trials. Here, a trial of speed is agreed upon, and the right of action rests solely upon the failure of the animal, on such trial, to make the distance within the time. What is this but a race —a trotting match against time 1 Whether the plaintiff was entitled to any thing or not, depends entirely upon the result of this trial of speed. And it is clear, I think, that this is nothing more nor less than a wager of an uncertain amount, under the guise and formality of a contract of sale. The contract is , skillfully drawn, but the drapery does not conceal the vicious principle from careful observation. The case, in this aspect, does not differ in principle from that of Brogden v. Marriott, (3 Bing. N. C. 88.) That was an action upon a contract for the sale of a horse, by which the plaintiff was to give two hundred pounds if the horse trotted eighteen miles w'ithin the hour, and only one shilling if he failed. The action was for the non-delivery of the horse upon the contract. It was held, on motion in arrest, that the agreement was in the nature of a wager, and was void upon its face within the statute 9 Anne, ch. 14, against betting and gaming. That case covers this entirely. The provision in question is not a mere warranty of the capacity or qualities of the animal. It is more. It is an agreement to forfeit and repay the price advanced, or a portion of it, in case she fails to perform. It is staked upon the result of the trial of her speed. Such being the nature and legal import of this portion of the contract, it is unnecessary to look beyond its terms, to the conduct of the parties, for the purpose of ascertaining their purposes and intentions. As a contract or security for the repayment of money thus advanced, it is void by statute, (1 R. S. 663, § 16,) and courts will lend no aid to enforce it. The judgment of the special term must therefore be affirmed.

[Monroe General Term, December 4, 1854.

Johnson, Welles and T. R. Strong, Justices.]