Barnum v. Barnum , 8 Conn. 469 ( 1831 )

Daggett, J.

Upon a fuller consideration of the question in this case than I had given it at the trial, and upon further discussion at the bar and by my Brethren, I am convinced that the instruction given to the jury, was wrong; and that there ought to be a new trial. This, for aught which appears, was a fair speculation. Neither of the parties, as the facts shew, knew the fate of the ticket: it was, therefore, a bargain of hazard. In the absence of all fraud, it is not easy to see why the plaintiff should not recover, upon the principles of law. Trading in these tickets—tickets of a lottery granted by our own legislature,—is, of course, lawful. This ticket was, at the time of the sale, worth its original price; and probably would have then sold for that sum. There was a benefit to the promisor; and this is always a good consideration.

If it be said, that there was no consideration, because when the ticket was sold, it was in fact worthless, because it had previously drawn a blank, it may be replied, that if this doctrine be true, a sale in Danbury of a ticket in a lottery, drawn, for example, in New York, on any day, say the 1st of May, would be void, if made at any time before the event of the drawing was known, though within an hour after the drawing was completed. I think no such doctrine has prevailed, but on the contrary, such sales have been deemed good.

No authorities were cited, by the counsel for either party, bearing directly on the point, except that of Earl of March v. Pigott, 5 Burr. 2802. That case proves, that there is a good consideration for such a promise. It was a bet between two young heirs upon the death of their respective fathers. The question was, which of two young heirs should come first to his father’s estate. One of these fathers was upwards of seventy, the other a little turned of fifty. The note upon which the action was brought ran thus: “I promise to pay the Earl of March 500 guineas, if my father dies before Sir William Codrington." The other note ran thus: “I promise to pay Mr. Pigot 1600 guineas, in case Sir William Codrington does not survive Mr. Pigot’s father,” The Earl of March had taken the place of Codrington, one of the young heirs, he Codrington, supposing the bet was in favour of Pigot. The bet was made in London, one hundred and fifty miles from the place of the residence of Mr. Pigot, the father of the defendant, who was then dead, having died a few hours only before the bet was made; and of course, the fact of his death was then unknown. It was strongly contended, that there was no consideration for this promise; but Lord Mansfield and the whole court of King’s Bench held otherwise. This case is not cited to establish the doctrine, that an action would lie upon a bet or Wager, (because I certainly think it would not, in Connecticut,) but to prove, that there was a consideration.

Without any wish to encourage speculation in tickets, I do not see any solid objection to a recovery. Let there be a new trial.

Hosmer, Ch. J. and Williams, J. were of the same opinion. Peters, J. not having been present when the case was argued, and Bissell, J. having been of counsel in the cause, gave no opinion.

New trial to be granted.