Rose v. Nelson

NOURSE, P. J.

During the progress of a game of poker in which plaintiff and defendant with a number of other persons were participating the defendant gave to plaintiff seven I.O.U.’s for cash used by defendant to continue the game. Thereafter defendant gave to plaintiff his check for $2,750 covering the face of the I.O.U.’s. This check was returned from the bank unpaid and is the basis of this action. The cause was tried to a jury which returned a verdict for plaintiff. A new trial was granted, but pending the hearing, the defendant moved for a summary judgment under section 437c, Code of Civil Procedure. This motion was granted and from that order the appeal is taken.

The apellant argues just one issue, which though incorrectly stated in the brief, is this: “Is money loaned by one player to another while both are participating in a poker game without further (stipulation as to its use) such a gambling debt” as to preclude recovery? The answer is in the affirmative.

The general rule covering such transactions is found in 24 American Jurisprudence page 464, reading: “A lender who advances money to a borrower with the understanding

[752]

that it is to be used in gambling, or who participates and shares in the gambling transaction thus promoted by his act, becomes partieeps criminis and cannot recover the money thus advanced. Similarly, if the lender takes any active part in the gambling contract, such as depositing the loan as margins, he cannot recover. ’ ’

In accord are 38 C.J.S. p. 97;

Union Collection Co.

v.

Buckman,

150 Cal. 159, 161 [88 P. 708, 119 Am.St.Rep. 164, 11 Ann.Cas. 609, 9 L.R.A.N.S.

568]; Hamilton

v.

Abadjian,

30 Cal.2d 49, 52 [179 P.2d 804] ;

Wallace

v.