
    Case 27 — PETITION ORDINARY —
    March 18.
    Martin v. Richardson.
    APPEAL FROM UNION CIRCUIT COURT.
    1. Validity op transaction growing out op illegal act. — If an act in violation of law he already committed, a subsequent agreement founded thereon is valid, provided it constituted no part of the original inducement or consideration of the illegal act.
    2. Same. — Obtaining lottery ticket by praud. — Where one by fraudulent representations obtains possession of a lottery ticket which has drawn a prize, and receives the money thereon, be is to he regarded as collecting the money for the use of the rightful owner of the ticket, who may maintain an action therefor, although he originally purchased the ticket from the defendant in violation of law, and parted with it to defendant in exchange for another lottery ticket, the exchange being induced by defendant’s fraud.
    3. Presumptions. — In all such cases every presumption is in favor of the legality of the transaction, and even if the fact that the lottery ticket was purchasel in Kentucky, and therefore in violation of law, would prevent a recovery, it must be presumed, in the absence of proof to the contrary, that the ticket was not purchased or exchanged in Kentucky, but in some place where it was lawful to purchase or exchange it.
    4. Same. — Pleading.—As the defendant denied by his answer that the plaintiff had ever owned or held the ticket which the plaintiff alleged in his petition defendant had obtained from him by fraud, certain transactions set up by defendant in his answer as to the sale by him to plaintiff of lottery tickets and their subsequent exchange, which transactions he alleges occurred in Kentucky, necessarily excluded the transaction with reference to the particular ticket in question here, and therefore it does not appear from the pleadings, which are ■ alone presented for review, that this ticket was purchased or exchanged in Kentucky, it not being so alleged in the petition.
    ADAIR & MORTON eor appellant.
    1. The appellee acquired no legal title to the tickets in the Little Louisiana Lottery, nor to any prize drawn by them, under the purchase from appellant. (Gen. Stats, chap. 29, art. 23, sec. 3; Idem, chap. 22, sec. 5; 13 Am. & Eng. Eno. of Law, p. 1167; Idem, p. 1187.)
    2. The exchange of tickets was an exchange of articles without any value. Neither ticket was worth any thing, except it was made valuable by the voluntary act of the lottery company. Therefore, appellee lost nothing by the exchange, and the law will not recognize and adjudicate transactions involving no valuable consideration. There oan be no assumption (as in the case of Bibb, &c., v. Miller, &c, 11 Bush, 310), that the lottery was legal, it being admitted by the pleadings. that the lottery in Kentucky (where the contract was made) was illegal.
    3. The exchange of tickets, although occurring after the drawing, was as much in violation of our statute as if made before the drawing occurred, and appellee would have as much right to sue for the ticket itself as for its proceeds.
    Whenever the contract which the party seeks to enforce is expressly or by implication forbidden by the common or statute law, no court will lend its assistance to give it effect. And persons co-operating in an illegal transaction oan not obtain relief from the courts. (Buck v. Albee, 26 Vt., p. 184; Ohitty on Contracts, p. 730; Duncanson v. McLuer, 4 Dallas, 306.)
    WM. LINDSAY and EDWARD W. HINES eor appellee.
    1. There is nothing in the pleadings to show that the ticket'which drew the prize was purchased or subsequently exchanged in Kentucky, and, therefore, the court can not know that the transaction was in violation of law. In fact, the presumption is in favor of the transaction, and if it be susceptible of two meanings, the one legal and the other not, that interpretation will be put upon it which will support and give it operation. (Bibb, &e., v. Miller, &c., 11 Bush, 309.)
    2. As the legality of the Little Louisiana Lottery was in issue, and the evidence is not berg, this court must presume that its legality was proved, or rather that it was not proved to be illegal, the presumption being in favor of its legality.
    3. The original illegal transaction was complete prior to the time defendant perpetrated upon plaintiff the fraud by which he obtained the possession of the ticket, and defendant is in no better attitude than a stranger to that transaction would be. Therefore, he must be regarded as having received to the use of plaintiff the money he collected upon the ticket he had procured from plaintiff by fraud, and the mere fact that the money received was a prize in a lottery, drawn by a ticket purchased in violation of law, does not prevent plaintiff from recovering. (Story on Contracts, 4th ed., vol. 1, sec. 622; Farmer v. Russell, et al., 1 B. & P, 295; Armstrong v. Toler. 11 Wheat., 258; Willson v. Owen, 30 Mich., 474; Rothrock v. Perkinson, 61 Ind., 39.)
    4. If the connection of defendant with the original sale is to be considered, there is still no obstacle to a recovery. There is a difference between enforcing illegal contracts, and asserting title to money which has arisen from them. (Brooks v. Martin, 2 Wall., 70; Catts v. Phalen, 2 How., 376.)
    5. The parties were not in pari delicto even in the original transaction, for he who offers a lottery ticket for sale, and thus tempts others to buy, is guilty of a greater wrong than he who buys, and under such, circumstances relief may be granted. (Harper v. Harper, 85 Ky... 165; Anderson v. Meredith, 82 Ky , 571.)
    ALLEN & HUGHES of counsel on same side.
   JUDGE HAZELRIGG

delivered the opinion of the court.

Richardson, the appellee, was the owner and holder, by purchase from Martin, the appellant, of four tickets in the Little Louisiana Lottery concern. Among them was ticket No. 93,262.

The drawing was fixed for January 14, 1890, and on the 15th or 16th of that month Martin informed Richardson that it had been postponed. He then induced him to surrender his four tickets and accept one in the Big Louisiana Lottery, saying that he had let him have these four tickets by mistake, that they belonged to ánother person, who was demanding them. As a matter of fact the drawing had not been postponed, and the ticket numbered as above stated had drawn a prize of three thousand seven hundred and fifty dollars. These facts were known to the appellant and not to the appellee. Thereafter the appellant presented the ticket to the lottery concern and received the prize. Refusing to account to the appellee for it, he was sued, and in the lower court, after the verdict of a jury, judgment for the sum of three thousand seven hundred and fifty dollars was rendered against him, and from which he appeals. He does not bring up the evidence, and hence the only question is as to the sufficiency of the pleadings" to support the verdict and judgment. The action, was .simply one for money had and received. The defendant collected that - which belonged to the plaintiff, and the law implied a contract to pay it over to him. The contract which the law raised between them was not founded on the purchase or sale of a lottery ticket, but on the obligation to refund the money which had been procured and received by falsehood and fraud. It is true the plaintiff alleges that he bought the ticket from the defendant, and that it was one in the Little Louisiana Lottery, but he does not state where he bought it, and there is nothing in the petition to show that the lottery was unauthorized by law to transact such business. Hence the demurrer was properly overruled.

The answer denied that the plaintiff had ever owned or held the ticket numbered 93,262, or that the defendant ever delivered said ticket to the plaintiff, or that such ticket was obtained by defendant from the plaintiff in any way, or that he made the representations complained of.

Then follows a statement in the answer of how the plaintiff and defendant had exchanged a dollar ticket in the Big Louisiana Lottery for four twenty-five cent tickets in the Little Louisiana Lottery, and he disclaims any knowledge at the time of any of the tickets having drawn prizes. He avers that the Little Louisiana Lottery is located and operated in California, and is not ■ licensed or authorized by the laws of California or other States to carry on that business; nor is either of said concerns authorized or licensed to carry on ■such business, or sell or dispose of tickets or prizes by any law or statute of this State; that both plaintiff and defendant resided in this State at the time of the purchase by plaintiff of the tickets, and at the time of their procurement-and exchange as aforesaid, and all said acts and transactions were had and done in Union county, Kentucky.

It will be observed that it is nowhere alleged that plaintiff bought ticket No. 93,262 in Kentucky, or that he exchanged that particular ticket with the defendant in Kentucky. The transactions set up by the defendant in his answer as having occurred in Union county,. Kentucky, necessarily excluded those with reference to this particular ticket, because the defendant expressly and unreservedly denied that plaintiff ever held this ticket, or that he ever obtained it from him in any way. Moreover, the plaintiff, by reply, denied that the Little Louisiana Lottery was not licensed or .authorized by law to carry on' such business ; and therefore, as every presumption must be indulged in necessary fco support the judgment, we must assume, in the absence of anything to the contrary, that this purchase or exchange of ticket No. 93,262 occurred in some place where it was legal and lawful to purchase it or exchange it, and that the Little Louisiana Lottery was an institution legally licensed to carry on its: business. If the evidence were before us, a different state of case might be shown, but the verdict was for the plaintiff, and presumably sustained by the proof. And moreover, as announced in all such cases, every presumption is in favor of the legality of the transaction. (Bibb, &c., v. Miller, &c., 11 Bush, 306.) Here, then, we have a case where a party holds a ticket, the value of which does' not depend on any chance, or its payment on the voluntary action of the company, and the legal obtention, title and ownership of which is not called in question, or tainted with any sort of illegality. It is fraudulently obtained from the possession of its rightful owner, and we can see no reason why recovery may not be had. Such, indeed, would seem to be the case if the purchase or sale were shown to have occurred in Kentucky. This is not an action on a contract of sale of purchase of a lottery' ticket. The transaction out of which the suit springs, and which forms its sole basis, is subsequent to any alleged illegal act, and wholly disconnected with it.

In Armstrong v. Toler, 11 Wheat., 258, Chief Justice Marshall approved the opinion of the lower court,, which was to the effect “ that a new contract, founded on a new consideration, although in relation to property respecting which there had been unlawful transactions between the parties, is not itself unlawful.” And Toler was allowed to recover of Armstrong money which he had paid for Armstrong on account of goods known by both parties to have been imported contrary to law.

In Catts v. Phalen, &c., 2 How., 376, Catts was employed' to draw out the tickets. He had a confederate to buy a certain ticket, and before inserting his hand in .the lottery wheel he concealed in the cuff of his coat certain false and fraudulent tickets, which he managed to slip between his fingers, and then drawing out his hand produced the false ticket. When sued for the money received on the tickets so procured, he relied on the admitted illegality of the lottery drawing.

The Supreme Court said: “Phalen & Morris had in their possession twelve thousand five hundred dollars, either in their own right or as trustees for others interested in the lottery. No matter which, the legal right to this sum was in them. The defendant claimed and received it, by false and fraudulent pretenses, as morally criminal as by larceny, forgery or perjury; and the only question before us is whether he can retain it by any principle or rule of law.”

“To state,” says the court, “is to decide such a case.”

“The principle of illegal contracts is” (see Story on Conflict of Laws, sections 248, 249), “after the illegal act is done, if the new contract is wholly unconnected with the illegal act, and is founded on a new consideration, and is not a part of the original scheme, although it may be known to the party with whom the contract is made, it will make no difference that such new and independent contracts are made with the person who is the contractor or conductor of the original illegal act, if it is wholly disconnected therefrom.”

So' in Story on Contracts, section 760, it is said; “If an act in violation of either statute or common law be already committed, and a subsequent agreement entered into, which, though founded thereupon,, constituted no part of. the original inducement or consideration of the illegal act, such an agreement is valid.”

Instead of an “agreement” between the parties,, founded upon alleged illegal acts, we have in this; case an implied obligation raised by law to refund moneys fraudulently received and withheld. For other authorities to the same effect, see Farmer v. Russell, 1 B. & P., 295; Willson v. Owens, 30 Mich., 474; Rothrock v. Perkinson, 61 Ind., 39.

The Little Louisiana Lottery concern was, under the pleadings in this case, an institution operated under lawful authority, and the defendant, in presenting the ticket in question, and in collecting the plaintiffs money, may be regarded as acting as his agent, and as collecting for his use. The law implies an obligation to refund the money,. which is subsequent to and disconnected with the alleged illegal acts of buying, selling or exchanging the tickets.

Judgment affirmed.  