Hankins v. Ottinger

Van Fleet, J. It iscontended that the contract sued on was without consideration, in that it was a mere wagering venture which was void as against public policy, and not enforceable in a court of law. The contract, as alleged and found, was substantially this: The plaintiffs and the defendants, both owning racehorses, and having them entered in certain stake races about to be given by the Pacific Coast Blood Horse Association and the Oalfornia Jockey Club, made the agreement between themselves that they would pool all premiums and stake moneys offered by said associations on said races which should be awarded to either or any of their said horses, and divide the same equally—one-half to the plaintiffs and one-half to the defendants.

It was found that one of the defendants’ horses was awarded a purse so offered, amounting to five thousand four hundred and eighty dollars, which defendants now refuse to divide.

At common law a wager made in respect to matters not affecting the feelings, interests, or character of third persons or the public peace, or good morals or public policy, was valid, and its payment could be enforced; but if it was of a kind to affect the interests or character of third persons, or was in relation to a matter which militated against good morals or sound public policy, it was void, and no action in affirmance of such a contract could be maintained.

Whether betting on horseraces was of a character to fall within the latter class at common law is a matter about which there is elsewhere some contrariety in the adjudged cases. But, so far as this state is concerned, the question has been directly settled in the case of Gridley v. Dorn, 57 Cal. 78, 40 Am. Rep. 110, where it was held that such contracts are void as contravening good morals, and cannot be enforced by the courts. [457]It is well settled, however, that a bet or wager, such as comes within the rule of public policy and good morals invoked in that case, and by the appellants here, is where the parties competing themselves each put up or bet a .certain sum or valuable thing, which is to be taken by the winner and forfeited by the loser on the turn of the event. (Alvord v. Smith, 63 Ind. 58; Harris v. White, 81 N. Y. 532.)

Such a contract will not be affirmed by the courts,, but the parties will be left for redress to their own code of ethics.

But the contract presented for consideration was not such a contract. It related solely to purses or stake moneys to be paid by the associations offering them, and covered nothing which the parties themselves might see fit to hazard. There was no wager or bet of their own money, to be lost by one and taken by the other, but only that of a third party offered for their competition. This did not constitute the transaction a wager. “ There is a clear distinction,” say the supreme court of judicature of Indiana in Alvord v. Smith, supra, “ between a wager or bet and a premium or reward. In a wager or a bet there must be two parties, and it is known, before the chance or uncertain event upon which it is laid is accomplished, who are the parties who must either lose or win. In a premium or reward there is but one party until the act or thing or purpose for which it is offered has been accomplished. A premium is a reward or recompense for some act done; a wager is a stake Upon an uncertain event. In a premium it is known who is to give before the event; in a wager it is not known till after the event. The two need not be confounded.”