Auxer v. Llewellyn

Mr. Presiding Justice Thompson

delivered the opinion of the court.

The only question presented for review is the propriety of the instruction to the jury to find for the defendant. Appellant by his own showing was ambitious to become a member of a class of confidence sharks. He willingly joined with Llewellyn, Taber and Haughn in an arrangement with Bennett that Bennett and Llewellyn should have a fake fight, in which appellee was to win, and the Bloomington sports, who had bet their money on Bennett, were to lose and Auxer who had nominally bet his money on Llewellyn on a sure thing was to win, and was to receive $300 “easy money” for permitting his name to be used as a financial backer of Llewellyn, although he believed he was not risking anything. The proof tends to show that the real conspiracy was between Llewellyn, Bennett, Haughn, Taber, Funk and Livingston “to make a killing,” and that Auxer was the lamb they had selected for the sacrifice. Before the time for the fight arrived, appellant realized how he had been trapped and had repented and demanded his money back.

Appellant in making out his case shows that he believed that he and appellee, with Haughn, Taber and Bennett, were engaged in an unlawful enterprise against Funk and Livingston. It is claimed they were in pari delicto, and the Circuit Court held that the maxim potior est conditio defendentis applies. Appellee cites Shaffner v. Pinchback, 133 Ill. 410; Mosher v. Griffin, 51 Ill. 184, and the dissenting opinions in Pearce v. Foote, 113 Ill. 244, and Stewart v. Wright, 147 Fed. R. 336, in support of his contention that because of this maxim the court should leave the parties as it finds them.

The rule is not of universal application in this State that where parties voluntarily engage in an unlawful or illegal transaction, the law will hold them to be in pari delicto, and that there cannot be a recovery by one of the parties from the other, even when there is no statute providing for a recovery. Evans v. Funk, 151 Ill. 650; Herrick v. Lynch, 150 Ill. 283; Paige v. Hieronymus, 180 Ill. 637.

At the common law, gambling contracts when fair and free from cheating, were assumed by the court to be valid. There were however certain classes of wagering contracts which were exceptions to the general rule. 14 Am. & Eng. Ency. of Law, 2nd Ed., 586. By the Statute of Illinois all gambling is prohibited and all gambling contracts are made invalid, except contracts of insurance (sections 126 to 137 of the Criminal Code). Section 132 of the Criminal Code provides: Any person who shall at any time or sitting, by playing at cards, dice or any other game or games, or by betting on the side or hands of such as do game, or by any wager or bet upon any race, fight, pastime, sport, lot, chance, casualty, election of unknown or contingent event whatever, lose to any person so playing or betting any sum of money, or other valuable thing amounting in the whole to the sum of $10, and shall pay or deliver the same, or any part thereof, the person so losing and paying or delivering the same shall be at liberty to sue for and recover the money, goods or other valuable thing, so lost and paid or delivered or any part thereof, or the full value of the same, by action of debt, replevin, assumpsit or trover or proceeding in chancery, from the winner thereof with costs in any court of competent jurisdiction. In any such action at law it shall be sufficient for the plaintiff to declare generally as in actions of debt or ..assumpsit for money had and received by the defendant to the plaintiff’s use,” etc. By sections 231 to 235 of the Criminal Code, prize fighting, sparring and boxing are made illegal and criminal, and all parties who participate in or encourage or promote such contests are liable to fine or imprisonment. Section 132 provides that parties wagering their money on a fight may after they have parted with it sue and recover the same. A fight is illegal even if the parties thereto honestly endeavor to overcome each other. If there are no degrees in crime, then it was not more wrongful because the fight was a cheat and fixed.

It is said appellant did not lose his money to appellee, but to Haughn. “There is and can be no such thing as agency in the perpetration of crimes or misdemeanors, or indeed in the doing of any unlawful act. All parties actively participating are principals.” Pearce v. Foote, 113 Ill. 228. The maxim, applies “Who acts through another is in law considered as doing it himself.” If Haughn received the money of appellant on a bet and divided the proceeds with appellee then appellee must be held to be a winner of the money of appellant. In view of the statute the maxim potior est conditio defendentis cannot be invoked to bar this suit. Recoveries have been sustained on transactions very similar to the case at bar, in the following cases: Snyder v. Nelson, 101 Ill. App. 619; Falkenberg v. Allen, 90 Pacific R. 415 (Okla.), 10 L. R. A. 494 (N. S.); Hobbs v. Boatright, 195 Mo. 693; Lockman v. Cobb, 77 Ark. 279; Stewart v. Wright, 147 Fed. R. 321. We are of the opinion that while the appellant was willing to be a confidence shark, still the statute of this state, in the interest of public policy, has not excepted bets on fake races or fights from the general rule, and permits the victim of such a conspiracy, although a conspirator, to recover his money, whether the bet was on a sure thing or on an uncertain event.

It is said there was no proof that the money found upon appellee was any portion of the money deposited with Haughn by appellant. The proof is that appellee on Ms way from Cleveland to Fairbury had no money; that he borrowed small sums on the train from appellant and that he said he was “dead broke.” The money found on him was concealed in his hat. These were facts from which it might be inferred the money found on him was the money of appellant, and that Auxer was staMng Ms money against the combined cunning of the reputed pugilists and their associates. There was evidence that should be submitted to a jury on the question whether appellee had the money or any part of it that was wagered by appellant on the fake fight. The instruction to find the appellee not guilty should not have been given. For tMs error the judgment is reversed and the cause remanded.

Reversed and remanded.