RECOVERY OF WAGERS.

[Franklin Circuit Court,

January Term, 1894.]

Stewart, Shauck and Shearer, JJ.

#### * Cannon et al. v. Cheney.

Partners May Sue to Recover Property Eost by One Member.

Under the provisions of Title V, chapter 5, of the Rev. Stat., the members of a copartnership may join in an action to recover their property which has been wagered and lost by one of them without the knowledge of the others.

Error to the Court of Common Pleas of Franklin county.

The plaintiffs in error, H. P. Cannon, W. H. Rodebaugh and W. VB. McCraken, filed their petition in the court of common pleas alleging in substance that there is due them fifty dollars with interest, from November 17, 1888, for a suit of clothes of the value of fifty dollars which on that day they wagered on the result of the approaching election in Ohio and delivered and lost the same to the defendant, and praying judgment for said sum and interest.

The defendant answered, admitting that the plaintiffs were copartners and that he received the suit of clothing, and denying all other allegations of the petition.

On the trial to the court, a jury having been waived, two of the plaintiffs and the defendant testified. Their testimony showed without conflict that in *336October, 1888, Rodebaugh, who traveled for his firm, taking orders and measures for gentlemen’s suits, solicited an order from the defendant, who declined to give the order until Rodebaugh proposed to send him the suit in question, which was of the value of fifty dollars, for which the defendant was to pay fifty dollars if General Harrison should carry Ohio the next month by 20,000 majority, but that if he failed to receive that majority, the suit should not be paid for. This proposition was accepted and an order was given by Cheney. The order was sent by Rodebaugh to the store of his firm in Lancaster as an order for the sale of merchandise in the regular course of business. On November 17, the goods were shipped to the defendant, Cannon and McCraken having no knowledge of the wager until the defendant’s refusal to pay for the suit some months later. General Harrison’s majority was less than 20,000.

After the conclusion of the evidence the plaintiffs asked leave to amend their petition by alleging that said property of the plaintiffs was wagered and lost by Rodebaugh. The court overruled this motion and rendered judgment for the defendant. Whereupon the plaintiffs filed a motion for a new trial, which was overruled.

The plaintiffs seek a reversal of this judgment because the court of common pleas erred in refusing them leave to amend and in rendering judgment against them.

This decision was affirmed by the Supreme Court in 54 O. S., 683; unreported.

Shauck, J.

Whatever may have been the rules of the common law as to parties in *pari*delicto, it is not doubted that under the provisions of chapter 5, Title V., of the Rev. Stat., loser of property by means of a wager may recover back that which he has lost. It is said, however, that Roderbaugh, alone made this wager, that wagering was not within the scope of the firm business, that .the wager being illegal cannot be ratified nor affirmed by the partners who did not participate in it, and that Rodebaugh, being answerable to the firm for a misappropriation of its property, should have sued alone in this case.

If this view of the case is correct, the proposed amendment would have been unavailing. If it is incorrect, the judgment should have been for the plaintiff without amendment. The defendant went to trial upon the merits of the case without having objected by either demurrer or answer that there was a misjoinder of parties plaintiff. Such misjoiner is one of the grounds of demurrer under sec. 5062, Rev. Stat. It is provided in sec. 5064, that when any of the defects enumerated in sec. 5062 do not appear upon the face of the petition, the objection may be taken by answer; and if no objection be taken by either demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.

An illegal contract, while executory, cannot be ratified nor affirmed so as to entitle either party to insist upon its performance by the other. But that principle would not have supported a plea of misjoinder of parties plaintiff, if such plea had been made. Rodebaugh alone of the plaintiffs participated in the illegal transaction whereby the property of all the plaintiffs was wagered and lost. The other plaintiffs did not need the aid of the statute which authorizes the suit to recover back the thing lost. The defendant has wrongfully acquired the property of the plaintiff. By this suit they affirm the title which he then acquired. They do not in any sense ratify, nor affirm the wagering contract. Indeed, the plaintiffs are all in the position of denying the validity of that contract. The3' assert a right to recover against the terms of the contract because it was illegal. They are all interested in the subject of the action, and in view of the provisions of sec. 4270, Rev. Stat., none of them is disabled to join in the suit.

*337
      *Edmund B.*Dillon, for plaintiff.

*C. C. Pickering*and *J. J. Crosbie, contra.*

The judgment will be reversed and, as the evidence is in effect an agreed statement of facts, a final judgment will be entered in favor of the plaintiffs in error.