Lavick v. Nitzberg

NOURSE, P. J.

Plaintiff sued on four checks of $500 each given to plaintiff in payment for chips to be used by defendant in a game of “low ball” or draw poker. Plaintiff was the owner of the premises in which he conducted a gambling establishment. He knew that the checks were given for the purchase of chips, that the chips would be used by the defendant in the game which was then in progress, and that one of his employees would participate in the game. Defendant lost all the chips and thereafter stopped payment on the cheeks.

The cause was determined on a stipulation of facts, and the trial court made findings as to the truth of the allégations of the complaint and of the affirmative defense. Judgment followed for defendant.

Appellant rests his case on the premise that since “low ball” or draw poker is not a game declared illegal by section 330 of the Penal Code therefore such a game is a “lawful” transaction. The argument overlooks the provisions of section 1667 of the Civil Code which reads: “That is not lawful which is: 1. Contrary to an express provision of law; 2. Contrary to the policy of express law, though not expressly prohibited; or 3. Otherwise contrary to good morals.” Thus that which is contrary “to the policy” of express law, or contrary to good morals is unlawful though not expressly prohibited by statute. It is this section which determines what is an unlawful contract, not section 330 of the Penal Code which determines what types of gaming are punishable as misdemeanors. ' And it is this section which establishes the law that a contract founded upon a gambling consideration is unenforceable.

Draw poker is assuredly a game of chance or, in other

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words, gambling.

People

v.

Philbin,

50 Cal.App.2d Supp. 859 [123 P.2d 159] ;

City of Lake Charles

v.

Marcantel,

125 La. 170 [51 So. 106]. In the early case of