Opinion
No. 29384.
April 20, 1931. Suggestion of Error Overruled May 25, 1931.
1. GAMING.
Indorsement and transfer of check in payment of a gambling debt is void and ineffective to pass title to any subsequent holder (Code 1930, sections 972, 1824).
2. GAMING. Bank paying check indorsed in payment of gambling debt, resulting in loss to bank when maker stopped payment, held without remedy against maker ( Code 1930, sections 972, 1824).
Payee lost check in a poker game and indorsed and delivered it to the winner. Indorsee owed third party for borrowed money and delivered check to such third party in part payment thereof, and third party upon her indorsement cashed check in bank, without bank knowing anything of surrounding facts. In meantime, maker stopped payment on check at suggestion of payee, whereupon bank which cashed check brought suit against maker to recover the amount paid on the check.
APPEAL from chancery court of Hinds county, First district; HON. V.J. STRICKER, Chancellor.
Lemuel H. Doty, of Jackson, for appellant.
The defense interposed originally and followed up was that the check was delivered to one of the parties gambling with Pirtle and that no consideration passed; that it being a gambling debt, the alleged consideration was utterly void.
Chapter 32, section 1824 of the Annotated Code of Mississippi, 1930.
The contention of the appellant, defendant below, in the court below, was that chapter 32 not having been expressly repealed, could not be repealed by implication where it is carried forward from the Code of 1906 to the present Code and the authorities cited seem to hold that no gambling or future contract can be collected but are absolutely void.
Campbell v. N.O. Nat'l Bank, 74 Miss. 526, 21 So. 400.
M.A. Pilgrim, of Jackson, for appellee.
The instrument in the case at bar having been executed for a good and valuable consideration, not tainted in any manner with any gambling debt or other thing contrary to law, was a good and valid instrument and contract in the beginning and therefore not affected in any manner whatsoever by section 1824, Code of 1930.
The appellee is the holder in due course of the instrument in question, the instrument having been executed in the beginning for a lawful consideration is a valid and binding obligation. The appellee being a holder in due course is protected by the law against defects in title of prior parties. This being true the question of the check having been negotiated in a poker game does not affect the right of the appellee to recover against the drawer.
Counsel refers to the case of Campbell v. New Orleans National Bank, which is a Mississippi case, reported in 21 So., page 400. We do not see where this case is applicable. The contract in question was a cotton futures contract, executed for a void consideration in the beginning and is therefore different from the check in this case. The check in this case having been executed in the beginning for a good and valid consideration. In case the court should decide there is conflict between the gambling statute and the negotiable instruments law, we wish to call attention to the fact that the above referred to case was decided in 1897 involving a contract made in 1888. The uniform negotiable instruments law of the state of Mississippi was not adopted until 1916.
Appellant sent its check for seventy-five dollars to its employee, one Pirtle. The latter lost the check in a poker game, and thereupon indorsed and delivered it to the supposed winner, one Smith. The latter owed a Mrs. Fairchild for borrowed money, and delivered the check to her in part payment thereof, and Mrs. Fairchild upon her indorsement cashed the check in appellee bank, the bank knowing nothing of the facts above stated. Having ascertained, as he asserts, that the poker game was what is commonly called, in the vernacular, crooked, Pirtle wired appellant to stop payment, which was accordingly done; and appellee bank sued the said maker to recover the amount paid out by appellee in cashing the check, and secured a decree for the amount.
Under section 1824, Code 1930, and under the rules of interpretation thereof, as required by section 972, being the leading sections on gambling transactions, the transfer of the check by Pirtle to Smith was utterly void, and was no more effective to pass title than if the check had been stolen. Therefore no title passed to Mrs. Fairchild, nor through her to the bank. Consequently, the latter must look to Mrs. Fairchild for its money. 3 R.C.L., p. 1020.
This question has been settled by the opinion in Elkin Henson Grain Co. v. White, 134 Miss. 203, 98 So. 531. Evidently this decision was not called to the attention of the learned chancellor, since it was not cited in the briefs here.
Reversed, and bill dismissed.