Wise v. Rose
Before: Vanclief
Synopsis
Wager—Repudiation before Decision—Recovery from Stakeholder. Where a wager upon, the result of a horserace is repudiated, and notice of the repudiation given to the stakeholder before the race is run and the wager decided, the stakeholder is bound to deliver the stake deposited with him by the party repudiating the wager to such party, and he may recover the same from the stakeholder, though subsequently paid over to the winning party.
Id.—Pleading—Insufficiency of Denial,—Where the complaint avers that notice of repudiation was given before the race was run, an answer admitting that the notice was given, but stating that the defendant cannot positively say whether it was received prior to the time when the event occurred, or prior to the time when the wager was decided, does not deny the averment of the complaint that he had notice of the repudiation before the race was run, and before it was known, or could have been known, whether plaintiff had won or lost the wager.
Id.—Conjunctive Denial.—A conjunctive denial of several distinct allega, tions of the complaint, connected by the conjunction “and,” is not a denial of any one of them.
Id.—Evidence—Regulations of Turf.—The regulations and usages of the turf are subject to the laws of the state, and it is not admissible to prove that the words “play or pay,” in a written agreement of wager upon a horserace, mean that, after the stakes were placed, neither party could repudiate the wager without the consent of the other, even though one of the horses should die before the day set for the race.
Vanclief, C. It is alleged in the complaint that plaintiff and A. B. Spreekels laid a wager of $500 on the result of a horserace to be run on the Stockton course between September 17 and 22,1894, each depositing with the defendant his stake of $500, under an agreement that defendant should pay the stakes ($1,000) to the winner; that before the race was run, and before it was or could have been known or determined whether plaintiff had won or lost the stakes, he repudiated the wager and served written notice of such repudiation upon Spreekels and upon defendant, and, two days thereafter, demanded of defendant his said stake of $500; but that defendant has failed and refused to return to him said sum of $500 or any part thereof. ■
In his answer defendant admits the wager, and that plaintiff and Spreekels each deposited with him a stake of $500 pursuant to a written agreement between them, which was also deposited with him, of which the following is a copy:
[161]“San Francisco, Cal., Aug. 15,1894.
“In the match race between the mare ‘She’ and ‘Jennie June’ the conditions are as follows, to wit: L. J. Rose (Jr.) is stakeholder. The race to be trotted at Stockton, California, during the fall meeting. Each principal to select one judge, they to select a third judge. The principals to agree upon a starter. The race to be three best heats in five and trotted to rule. Positions to be decided by tossing up. The race to be for five hundred dollars a side. Play or pay.
“ K. D. Wise,
“A. B. Spreckels.”
That thereafter the following further written agreement was executed between plaintiff and Spreckels:
“ Sacramento, Cal., Sept. 10, 1894.
“The undersigned agree to trot the match race between ‘ She’ and ‘Jennie June’ on the 18th day of the present month, over the Stockton course.
“A. B. Spreckels,
“K. D. Wise.”
That at the time and place thus appointed the said “Jennie June” failed to appear, although requested by the judges of the race so to do, but that the mare “ She” did appear in accordance with the terms of said agreement, and did trot over said course at said time, and did win said race; and thereupon the judges of said ' race did so decide and declare in writing, as follows:
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