
    George W. Harper v. Joseph C. Crain.
    la August, 1872,0. sold and delivered to H. a horse, upon his written contract to pay therefor $140 one day after G. should be re-elected president of the United States; but if G. was not re-elected, then the obligation was to be void. Before the election, H. returned and tendered back the horse, in as good condition as when received, and demanded his contract, but C. refused to receive the horse or surrender the contract. Thereafter, H. kept the horse as bailee of 0. After the election, at which G. was elected president, 0. demanded the contract price of the horse, and, on refusal by H. to pay, but while he was ready and willing to return the same, brought an action under the act of 1831 (1 S. & 0. 664), to recover the value of the property. Held,
    
    1. That the transaction was a wager, within the meaning of said act, and the contract was void.
    '3. That H. might, before the election took place which was to determine the wager, rescind the contract by surrendering back the horse.
    ■3. After such refusal to take back the property, H. might elect to hold the property as bailee of C., and he is not liable under the statute for its value, unless it appears that, at the time the action was commenced, ■he had refused to deliver him back, or done some act amounting to a ■conversion of the property to his own use.
    Error to the District Court of Greene County.
    The original action was brought before a justice, December 21, 1872, by Crain against Harper, to recover $140, the value of one horse, sold and delivered August 27, 1872.
    Harper denied the indebtedness, and set up as a defense that the horse was sold upon a wager on the presidential election, ■and that before that event he returned the horse and drew the wager.
    After a trial and judgment the case was appealed. In the common pleas, Crain filed his petition, alleging, as before the' justice, that Harper was indebted to him for $140, with interest from August 27, 1872, for a horse that day sold and delivered at his recpiest.
    The defendant answered, that the horse was sold and delivered under the following special contract:
    “ Cedar ville, O., Aug. 27, 1872.
    
      “ Eor value received, one day after General U. S. Grant is re-elected President of the United States of America, I promise to pay J. C. Crain One Hundred and Forty Dollars. The condition of note is that if the said Grant is not elected this note is null and void.
    <c Witness. “ G. W. .Harper.
    “ S. L. Stewart,'
    “ A. T. Boyd.”
    He alleges that, on October 27,1872, he returned and offered to deliver back the horse, and the plaintiff refused to receive it, and that thereafter, until March 8, 1873, he was at all times-ready to return the horse, and on that day he sold him at public auction to the highest bidder, after due notice to Crain.
    A demurrer to this answer was overruled, and the plaintiff, upon leave, amended his petition, -in which he avers a delivery of the horse under above special contract, the non-payment and the refusal to pay therefor, and that defendant “ has disposed of and converted the same to his own use,” whereby a cause of action has accrued to him for. the value of the horse, under “ An act for the prevention of gaming,” passed March 12y 1831.
    The defendant moved to strike this amended petition from the files, for the reason that it was not an amendment of the original cause of action, but was wholly a new and distinct cause of action.
    This motion was overruled, and an exception was noted. The defendant then answered, setting up the same matter as in his original answer, and averring that he has always been ready to pay to plaintiff the $61.50 proceeds of the sale of the horse, and now brings the same into court, &c.
    The reply admits the offer to return the horse in October, and plaintiff’s refusal to receive it, for the alleged reason that defendant had kept it as his own for about two months, “ whereby, and by reason of the fault of the defendant, the said horse had materially depreciated in value, and that plaintiff had lost the use thereof in his business.” A claim was also interposed by defendant as a set-off, but, as it does not affect the errors assigned, need not be noticed.
    After a judgment in favor of the plaintiff, and its reversal by the district court, the case was again tried in the common pleas, resulting in a like judgment for plaintiff below, which was affirmed by the district court.
    To reverse this judgment is the object of the present proceeding in error.
    Upon the overruling of a motion for a new trial, a bill of exceptions was taken by plaintiff in error, setting out all the testimony and the charge of the court.
    Numerous errors are assigned, among others that the verdict was against tlie law and the evidence, and that the court erred in overruling a motion for a new trial, made on that, among •other grounds.
    
      B. F. Howard and John Little, for plaintiff in error:
    The tender was a complete bar to the action. The contract between the parties was a wagering contract, and was illegal and void. At common law neither party could maintain an action upon it. That law would leave the parties to the contract just'where they had placed themselves. The statute has .so far changed the law as to enable the party who has lost money or property by means of any bet or wager, and has actually paid or delivered it to the winner, to bring an action .against the winner to recover the same. Now, if Crain was the loser in this case, within the meaning of the statute, and for the sake qf the argument it is conceded that he was, he would have had a right of action against Harper for the recovery of the horse; and it would have been the corresponding ■duty of Harper to have returned the horse to Crain. The return of the horse would have had the effect of relieving Harper from his liability to be sued. He was not bound to wait to be -sued. He might voluntarily do what Crain had a right to rehuiré at his hands. The tender by Harper and the refusal by Crain to accept were equivalent to a performance, and Harper was thereby discharged from all obligation to Crain. He had ■done all that he was bound to do, and all that Crain had a Right to require of him. After the tender and refusal, Harper had his election either to abandon the horse or to retain possession. If he continued to retain possession he was bound to deliver on demand, or if he sold, he would be answerable for the proceeds of the sale. 2 Parsons on Cont. 654, and note; 2 Kent Comm. 509; Chapman on Cont. 27, et seq.; Lamb v. Lathorp, 13 Wend. 97; Slengerland v. Morse, 8 Johns. 478; Cait v. Houston, 3 Johns. Cas. 249.
    The winner has no right of action under the statute to recover money or property lost upon any bet or wager. 1 S. & C. Statutes, 664, § 2. In this case Crain was the winner. Harper was the loser. See Simmons v. Bradly, 26 Wis. 689.
    
      At common law do action could be maintained upon a wagering contract by tbe loser against the winner, nor by the winner against the loser. Yates v. Foote, 12 Johns. 1; Demistan v. Cooke, 12 Johns. 376; 13 Ind. 344; 11 Ind. 59; Bunn v. Reker, 4 Johns. 426 ; Rucker v. Pitcher, 1 Comst. 392.
    
      E. H. Munger, for defendant in error :
    Harper’s answer alleges that he “ offered to deliver ” and. “ tendered ” the horse to Crain. In his reply, Crain expressly admits the “ offer to deliver,” but at the close denies all the allegations of the answer which are not expressly admitted— thus making an issue as to the alleged tender. For an “ offer to-deliver ” and a “ tender ” are not synonymous. There may be an offer to deliver a thing which is elsewhere — beyond reach.. To constitute a tender the thing must be present — -within reach. Benjamin on Sales, § 113. The plea of tender, even if not denied, is no bar to the action; because, 1. The reply contains, allegations sufficient to avoid the tender. 2. Harper himself admits Crain’s right to recover to the extent of the amount, brought into court.' 3. A tender is no bar to an action. 5-Pick. 285 ; 6 Pick. 340; 2 Parsons on Cont. (4 ed.) 150, notes; 16 Ohio, 451; 2 Ohio St. 10,11. No demand neeessary on the part of Crain before suit. 1 N. Y. 392.
    The “ winner ” as well as the “ loser ” (so called by the statute) is entitled to an action, when the “ winner ” of the wager is the loser of the property or the thing wagered, within the-meaning and intent of the statute. It is a question of the construction of the statute. “ In construing a statute the manifest reason and intention of the law should prevail, although at variancewitli the literal import of the language employed.” 3 Ohio St. "53, 80; 1 Ohio St. 543; 2 Ohio St. 210, 442 ; 6 Ohio St. 112..
   Johnson, J.

Although exception to the charge of the-court are not specifically made, yet as we have all the evidence as well as the charge, it is proper to examine it in connection with the evidence, in order to determine whether the verdict and judgment are according to law and evidence. Marietta & Cincinnati R. R. v. Strader, 29 Ohio St. 452.

This transaction was a wager, or bet, on the result of an election, and therefore void. Thomas v. Crouse, 16 Ohio, 54; Lucas v. Harper, 24 Ohio St. 328.

It is a fact, admitted in the pleading, and not controverted by the evidence, that before the election which' was to determine the wager, Harper returned and offered to re-deliver the horse to Crain, but he refused to receive it, because, as he states in his reply, the defendant had kept said horse as his property for the space about two months from and after the sale and delivery thereof to him, whereby,-and by reason of the fault of the defendant, the said horse liad materially depreciated in value, and that the plaintiff had lost the use thereof in his business.”

The pleadings thus made up presented, aside from the question of value, but one issuable fact, i. e., whether the plaintiff had the right to refuse to receive back the horse and sue for its value, on the ground that the defendant had converted him to his own use; or rather, whether his excuse for not receiving back the horse, for the reason set up in his reply above quoted, was valid.

That the horse was delivered to Harper under a wager contract, and that there was an offer to return, and a refusal to receive, before the election, was admitted by the pleadings.

Upon this state of fact, what were the rights of the parties ?

The statute prohibits such contracts, and gives a right of action to recover back to the loser.

Independent of this statute, there was no remedy for the loser, where the money or property had been delivered, as the law would not lend its aid to a party either in the execution or rescission of such a contract.

The.maxim, “ex turpi ca/usa, non oriter actio” applies in such cases, and leaves the parties where it finds them. Where property or money was lost, under a wager, prohibited by public policy, or by statute, it was the policy of the law to afford no remedy to the loser, because he was in pari delicto with the winner.

Again, in all cases of contracts prohibited by statute, or which are void as against public policy, the law allows a day for repentance, while the contract remains executory. He who advances money in consideration of a promise or undertaking to do such a thing, may, at any time before it is done, rescind the contract, and prevent the thing from being done, and recover back the money.

. But it would seem obvious, that if he delays rescinding until hi's rescission is inoperative, and the thing will still be done, although the contract, at the time of the rescission, was in form executory, it should come under the same rule as an executed contract for unlawful purposes.” 2 Parsons on Cont. 746, note v; Hooker v. De Palos, 28 Ohio St. 251; McAllister v. Hoffman, 16 S. & R. 147.

McAllister v. Hoffman was an action to recover back money in the hands of a stakeholder, deposited as a bet upon an eleclion..- After the election, the loser, upon notice-to the stakeholder hot to pay, the winner brought this action against the stakeholder, to recover it back.

. There was no statute in Pennsylvania, as in this state, authorizing a recovery back, but there was an act prohibiting such wagers.

It is there said, that by narrowing the locus penitential to the interval between the period of betting and the happening of the contingency, the object of the statute will best be promoted. Within this interval of time, the policy of the law is to allow either party to rescind an unexecuted contract, and to reinstate himself to his original status.

It being an admitted fact, that before the election Harper offered to return the horse and Crain refused to receive it, it follows that this offer was in the exorcise of a lawful right to rescind, unless, at the time of such offer, there had been such a conversion of -the property as excused Crain from the dury of receiving back the property.

By the clear weight of the testimony, and indeed there is scarcely a shadow of proof to the contrary, the horse was in as good, if not in a better, condition when the offer to return was made, than he was when delivered to defendant in August. It was therefore the duty of plaintiff to surrender the noto and take back-the horse. His excuse, as pleaded, to say nothing of the want of proof to sustain it, for not receiving back the horse, was based in part, if not wholly, on untenable ground. It was, that defendant had had the usé of him for about two months as his own, whereby, and by reason of the fault of the defendant, and also that the plaintiff had lost the use thereof 'in his business.

Two of these three reasons, to wit, the plaintiff’s loss of use, •and defendant’s use of the horse for two months as his own, without acts amounting to a conversion, did not deprive the •defendant of his right to rescind, nor excuse the plaintiff from Jais duty to take back the property.

Upon this state of pleading and of fact, the court charged the jury that plaintiff was entitled, under the statute, to recover the value of the horse, unless that right was defeated by the facts stated in the answer.

Notwithstanding the admitted offer to rescind and the refusal to accept, the plaintiff’s right to recover the value of the property, as a loser, is assumed by the court, unless defendant, upon whom the burden is cast, by the charge of the court, establishes the truth of the allegation of his answer.

In effect, this was telling the jury that the plaintiff might, '-under the statute, recover, not the property m specie, but its value, without also showing that defendant had comverted it to ■his own use, and in the face of the offer to surrender the prop•erty, and plaintiff’s refusal to receive it. This was clearly •erroneous.

Lucas v. Harper, 24 Ohio St. 328, was a case somewhat like the present. It was a sale of hogs at nine cents per pound, which were worth less than half that sum, to be paid for when H. G. should be elected.

The hogs were delivered, under this contract, to defendant, who converted them to his own use. After the election and •defeat of II. Gf, an action was brought to recover the market value of the hogs, under the act of 1831, and it was held that the transaction was a wager, and that the person losing might maintain this action against the winner under that act.

The case at bar differs from that in two material points : 1st, In this there is the absence of any proof of conversion, while in that there was an actual conversion; and 2d, In this the contract was rescinded before the election, while in that it was not.

Assuming that this action under this statute to recover back the property is maintainable, we think the plaintiff should prove, as he has alleged, that defendant has converted the property to his own use.

There should have been as demand and refusal to deliver,, which in law would amount to a conversion, or such an actua£ conversion as would have rendered a demand useless. Certainly, after defendant had offered to return the property, and the offer was refused, and when he was holding it as a merebailee for plaintiff, with reasonable and ordinary care, as the.proof shows, he was not liable for its conversion.

The amended petition was based upon this theory, for it alleges that plaintiff “ has disposed of and converted ” the horse-to his own use. This petition was filed, after the sale of the horse, in March, 1873, as stated in the answer, long after suit, brought, and such sale was not made by defendant as owner,, but as bailee of Crain.

Resides this, the rights of the parties were to be determined as they existed when the action was commenced, in December previous.

At that time, there is no pretense that there was anything-which, in law or in fact, amounted to a conversion. The proof abundantly shows that the horse was then in as good, if not ini better, condition than when delivered in August, and that defendant was at all times not only ready and willing to deliver back the property, but urgent that plaintiff should receive it,, and that the latter insisted on his keeping it, and paying the-agreed price.

To allow the plaintiff to recover the value of the horse upon the conceded facts of this case, would, in effect, enable him to-enforce a contract which is null and void, and that too, after it had been lightfully rescinded, without showing any act of defendant which, in law or fact, amounted to a conversion.

It is a matter of serious doubt whether such an action can be maintained under the statute, where the wager is withdrawn or the contract is rescinded before the contingency lias happened,, which determines it; but assuming, for the purposes of this case, that it can, we hold, that where, between the making of the contract and the happening of the contingency, either party elects to rescind, and offers to deliver back the money or property, which offer is refused, he is not liable for its value under the statute, without a showing that, before the .commencement of the action, he has, by a refusal to deliver on demand, or by some other act amounting to conversion, made himself liable for conversion of the property.

"We pass without consideration all other questions appearing-upon the record, and reverse the judgments below, on the ground that they are contrary to the law and the evidence.  