Heironimus vs. Harris, 14 B. Mon 313

Chief Justice Hise delivered the opinion of the court. The only question worthy of notice presented in this record, is whether an action can be maintained, and a recovery had, by the obligee or his assignee upon the following contract: “ We, the undersigned, have each purchased of j. W. W. Smith a gold watch, for the sum of fifty-five dollars for each watch, both amounting to $ 110, and agree to pay for the same when the election of president is decided, upon the following conditions, viz: If Gen. Winfield Scott is elected James M. Alexander pays the amount, and D. C. Heironimus takes both watches, and if Gen. F.

Pierce is elected D. C. Heironimus pays for the watches, and James M Alexander takes them. “August 9, 1852. Signed by JAMES M. ALEXANDER, D. C. HEIRONIMUS.” Held, that although, as between Alexander and Heironimus, this contract is based upon an illegal consideration, and therefore contrary to the policy of the law, and void, yet, as between the said obligors and Smith, or his assignee, it is valid and binding. Because Smith is the mere vendor of the two watches to the obligees, agreeing to look to the one or the other, severally, for payment for both after the election of either Gen. Scott or Gen.

Pierce, as president, as the one or the other of the candidates should be chosen. Smith’s right to demand the money for the watches, by the terms of the contract, did not depend upon the election of the one or the other of the presidential candidates. After the election should terminate he had a right to demand and recover the price of the two watches from Alexander if the election resulted in favor of Gen. Scott, and of Heironimus if it terminated in favor of Pierce.

Smith’s assignee avers, in Ms petition, that' the election did terminate in favor of Pierce, and demands a judgment against Heironimus, and Ms right to a recovery cannot, be defeated by the defendant upon the ground that either before, at the time, or after the purchase was made, he and Alexander, whether with or without the knowledge merely of Smith, agreed to risk the watches in a bet upon the result of the presidential election: in other words, the consideration which vitiates the contract between the obligors cannot Effect Smith’s right of recovery, for his demand as against them is founded upon a consideration totally different, to-wit: The sale and delivery of the watches to them, and he can in no wise be held to have forfeited his right to payment, because of the unlawful purpose and design, if such it was, of the obligees, to hazzard the watches, as between themselves, upon the result of the presidential election.

The contract in question does not come within the provisions of the 1st

section of

chapter 43, Revised Statutes, 367, because it does not appear, from the proof in the cause, nor the contract in suit, that Smith lent or advanced the watches with the design and for the purpose, on Ms part, that they should be used in gaining or wagering, but on the contrary it does appear, as a legitimate presumption arising upon the written contract, that Smith actually sold the watches to the obligees upon the terms stated, and for the lawful consideration, purpose, and motivc'- of receiving the price upon the contingencies stated from the one; or the other of the obligors, and to make lawful gain and profit thereby.

It is not stated in the contract, nor in proof aliunde, that the watches were loaned or advancetl for gaming purposes, and docs not follow that such was the purpose of Smith, because the purchas- . , x , , „ , , ers intended to make such use ox tho property purchased. Wherefore, as there appears to be no errors in the proceedings or instruction as given or refused in the lower court to defendants prejudice, the judgment is affirmed.