Rountree v. Ingle , 94 S.C. 231 ( 1913 )

April 2, 1913. The opinion of the Court was delivered by Sometime in 1911, Bailey Furniture and Lumber Company, of the city of Union, issued the following printed circular: "An elegant range free. In order to advertise their high grade stoves and ranges the Crescent Stove Works of Evansville, Ind., are furnishing us this $65 range free to give away to our customers. It will not cost the one who gets it a brownie. * * * trade with us, and in addition to getting more and better goods for the money, we give you a numbered card, a duplicate of which is placed in a box from which a number will be drawn and the one holding the corresponding number will get the range, which will be given away about the first of October. Every dollar you spend with us before that time gets you a chance at the range. Hold your tickets and watch our ad the first week in October and see who gets the range. It may be you if you trade with the Bailey Furniture and Lumber Company, the home furnishers and home builders, Union, S.C." A cut of the range was attached to the circular.

The card numbered 1616 was drawn from the box, and upon that card being presented by the defendant, Ardella Ingle, the range was delivered to her. The plaintiff, T.J. Rountree, then brought this action in a magistrate's court to recover the range from the defendant. At the trial he offered testimony in substance as follows: Plaintiff made a purchase from Bailey Furniture and Lumber Company and received cards numbered from 1604 to 1639; in consequence of hearing that 1660 was the number of the card drawn, he dropped all of his cards in the yard; when he found out that the card drawing the range was 1616, which he had held, he tried to find it among those thrown out but failed. On the part of the defendant, Ardella Ingle, the testimony was to the effect that she had acquired the card 1616 among others given her when she made a purchase at the store of Bailey Furniture and Lumber Company. The magistrate held as matter of fact that the plaintiff originally held the card; that it was among those which he dropped in his yard; and that some one had found it there and had given it to the defendant, Ardella Ingle; and he adjudged the range to be the property of the plaintiff. The defendant on appeal to the Circuit Court contended that even if the facts be as found by the magistrate, yet the plaintiff could have no relief, because his entire claim was founded on a lottery drawing, and that the Court, in accordance with the well established policy of the law in such cases, would give no relief, but leave the parties where it found them. The Circuit Judge held otherwise and affirmed the judgment of the magistrate.

There can be no doubt that the scheme under which the winning card was drawn was a lottery. On this point the authorities seem to be unanimous. 26 Cyc. 1637; 14 Am. Eng. Enc. 602, and cases cited. Our statute makes not only the promoter of a lottery, but the adventurers in it, liable to indictment. Criminal Code of 1912, secs. 256 and 260. Under these sections the purchaser of a lottery ticket is in pari delicto with the seller. The purchase being a criminal act, the purchaser can base no legal claim thereon for the money paid to the seller or to the prize allotted to his ticket. Indeed, his whole transaction is without the pale of the law, and he cannot invoke the aid of the Courts in enforcement of any claim depending on it. The purchaser of a lottery ticket in this State is, therefore, in a different plight from one who loses money in gambling or dealing in cotton futures, who may recover the amount paid out. Civil Code of 1912, sections 3417-3423. The plaintiff in the present case, having acquired his ticket in violation of the statute which made the acquisition of it criminal, it follows that his claim does not fall under cases like Martin v.Richardson (Ky.), 19 L.R.A. 692, and Becker v. Wilcox (Neb.), 16 L.R.A. (N.S.) 571, 116 N.W. 160, decided on the ground that the purchaser was not guilty of any criminal act, the statute against lotteries being enacted for his protection against those who conduct them.

Nor will it aid the plaintiff that the magistrate and Circuit Judge found that the defendant acquired the winning ticket by unfair means, and presented it and obtained the prize offered under the false pretense that she had received it from the merchant who gave them out. The principle thus stated by Lord Mansfield in Holman v. Johnson, 1 Cowper 343, is universally recognized: "The objection that a contract is immoral or illegal, as between the plaintiff and the defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this: Ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpecausa, or the transgression of a positive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes; not for the sake of the defendant, but because they will not aid the plaintiff. So if the plaintiff and the defendant were to change places, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it, for where both are equally in fault, potior est conditio defendentis." The authorities in this State are full to the effect that where a plaintiff brings into Court a claim which has no other support than a contract forbidden by law, he cannot recover.McConnell v. Kitchens, 20 S.C. 430.

The ultimate question, then, is whether the plaintiff has any basis for his claim beyond the lottery drawing; for the principle is well settled that where there has been another and independent contract, not forbidden by law, even though it be with respect to the proceeds of an illegal contract, the independent contract is enforcible. The case ofOwen v. Davis, 1 Bail. 315, is an example of an independent contract of this nature. There the plaintiff and the defendant had won at cards from one Murray, who gave his note to the defendant for the amount. The defendant collected a part of the note, and the action was to recover plaintiff's share of the amount collected, which the defendant refused to turn over. The Court held in effect that the action did not depend on any right to collect a gambling debt or to enforce a gambling contract, but that the contract of the defendant to hold the note and the proceeds for himself and the plaintiff was entirely separate, and that Murray having chosen to pay the debt, the defendant was bound to pay the plaintiff his share. This was on the principle that it was not necessary to plaintiff's recovery to allege or prove the gambling transaction, but only that the defendant had received a note from Murray for himself and as trustee for the plaintiff, and had collected money thereon. In the decision the Court applied the long settled test of recovery, namely, whether there is a legal obligation in favor of the plaintiff against the defendant separate from the illegal transaction and requiring no aid from it. Owen v. Davis,supra; Anderson v. Moncrieff, 3 DeS. 124; Tate v. Pegues,28 S.C. 463, 6 S.E. 298; Packard v. Byrd, 73 S.C. 1,51 S.E. 678; Union Pac. Ry. Co. v. Durant, 95 U.S. 576,24 L.Ed. 391, 9 Cyc. 556, 557, 558; Lemon v. Grosskopp,22 Wis. 447, 99 Am. Dec. 58, and note.

The plaintiff's case must fail under this test. He alleges title and right of possession to a range in the possession of the defendant, Ardella Ingle. The defendant denies his title and sets up an adverse title in herself. There was no independent contract between the plaintiff and the defendant that the plaintiff should have the range, or that the defendant would accept it or hold it for him as his agent. His claim has for its sole foundation a title alleged to have been acquired by reason of the fact that he held, in violation of the laws of the State, the winning card in a lottery contest, and that the range was drawn as the prize, in violation of the laws of the State. There is no independent or collateral contract of any kind upon which the plaintiff can depend. Using an extreme illustration: if after the drawing and before the delivery to the plaintiff by the merchant the range had been stolen from the store, the plaintiff could not have recovered from the thief, because he would have had no basis of claim except a lottery card and a lottery drawing, both denounced by the statute law of the State.

Reversed.