
    
      MONTILLET vs. SHIFF.
    
    Appeal from the court oí the parish and city of New-Orleans.
    Ifa bet be made on the e~ lection of governor, to be determined by
   Mathews, J.

delivered the opinion of the court. This is a suit brought by the depositor against the depositee, or stock holder of $1000 which he alleges were placed in the hands the latter, without stating for what purpose;, but claims a right to recover back the amount. The answer of the defendant admits the. deposit, states the cause of it, being a wager, he-tween the plaintiffand one Hamlet, depending tafhe respective number of votes that J. Vil- . leté and B. Marigny. should obtain from the people of the state, as candidates, in opposition for the office of governor, at the election. Hamlet beted on Villeré and the plaintiff on Ma-rigny, and that the bet being determined by the returns of the votes to the legislature in favor of the former, he paid to him the amount thereof, in pursuance of the deposit.

The defendant obtained judgment, in the court below, from which the plaintiff appealed The appellant, by his counsel contends, that according to the terms of the wager (which was reduced to writing,) it has not been decided; and from accidents, not within the control of either of the parties, never can be determined; and that consequently the aleatory contract has become null and void, or, in wagering language, it stands as a drawn bet, and each party has a right to withdraw his stake. The correctness of these propositions, on the part of the plaintiff, depends much on the true meaning of the last stipulation in the contract If it must be so construed, as to shew clearly the intention of the parties was, not to submit to any other calculation of the amount of votes, which each candidate obtained from the peer pje, but that which should be made according to the official returns, from the whole state. W e are of opinion that the appellant ought to succeed in his action, because the statement of facts shews that no returns were made from two of the parishes of the state. The agreement is written in the French language, and that clause of it, on which the rights of the parties mainly rests, is expressed in the following term: “ Bien entendu que cela s’entendm dans tout et Copres les rapports qui sermt faitsT in the construction or interpretation of laws, or contracts, a primary rule is, that effect if possible, should be given to the whole context, and that every provision should be enforced to the full extent, unless such interpretation, would lead to absurdity and nonsense.

In the present ease, the parties made then bet on the number of votes, which should la-given to the two candidates thropght the whole extent of the state, according to the official re. turns. But official returns were not made-from ail the election districts, and therefore the bet was not and could not be determined, unless we suffer the latter part of the clause of the contract so to control the first, as to render it null and of no effect, and subject the bet to be determined by the returns actually made. This we think would violate all rules of fair construction. The returns, which were made in conformity with the constitution and laws of the state, were sufficient to place Mr. Villere on the list of those, who were tobe finally voted for by the legislature, and he might have been made governor of the state.

But from the whole contract between the parties to the present suit, in relation to their bet, it is clearly seen that they did not choose to subject its decision to the same accidents, in the official returns, which must have exhibited either one or other of the candidates to the legislature, as having the greatest number of votes. Their wager has not yet been, determined, and the stockholder has paid it over in error. W hether it may yet be decided is questionable; but it is a question not required to be settled in the present case. Before concluding it is however proper for us to state, that the plaintiff is not in the situation of a loser, who has voluntarily paid, on the contrary, the money has been delivered to the supposed winner, by the stakeholder, contrary to the will and intention of the appellant; consequently the appel-lee cannot with any propriety or justice invoke that part of the code,which refuses an action to a person, who has lost and paid money on an illegal bet.

Dennis for the plaintiff Grymes for the defendant.

It is therefore ordered, adjudged and decreed that the judgment of the parish court be avoided, reversed and annulled; and it is further ordered, adjudged and decreed, that the plaintiff and appellant do recover from the defendant and appellee, one thousand dollars, with interest at the rate of 5 percent, per an-num from the judicial demand,and costs in both courts.  