The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-02-21
Stakeholder Gillie Does Not Have
to Pay $500.
A CALIFORNIA OPINION
Suit Was to Recover. Half OF q Wager
Made Between Mac .arlane and G.
8. Batterman Concerning the
Sale OF Mine.

rather interesting case by deciding in
favor of the defendant OH motion for
a non-suit. 1t was a case of James
Macfarlane against John Gillie, an ac-
ton growing out of a bet Macfarlane
had made with c. S. Batterman, in
which Gillie acted as stakeholder. A
little more than year ago Macfarlane
and Batterman had a dispute over the
question whether the Anaconda compa-
ny had or had not sold to the Montana
Ore Purchasing company the Sullivan
and Snowbird mining claims. Batter
man said the sale had not been made
and Macfarlane said it had They bet
$500 EACH placed the money in Gillie's
hands and signed the following paper:
Memorandum of wager between
James Macfarlane and c. S. Batterman
Said Macfarlane claims that the Mon
tana Ore Purchasing company, or F.
Aug. Heinze, paid to the Anaconda Min
ing company, or J. b. Haggin, the sum
of (S100,000) one hundred thousand dol
lars, being the full purchase price of
the Sullivan and Snowbird fractions,
on or before Nov. /. 1897
Said c. S. Batterman admits that
Heinze may have paid portion of said
amount or purchase price before Nov.
l. 1897, but claims that the sum of one
hundred thousand dollars or the full
purchase price in money was not paid
prior to Nov. l, 1897.
THE conditions of the bet are as fol-
lows: First-That Mr.. ]. B. Haggin
shall decide the bet by stating over lis
signature the date that such full pay
ment of 100000 was made, if the same
was made prior to Nov. /, 1897. If the
said j. B. Haggin fails to decide the
bet on or before Jan. 3, 1898, then the
wager to be taken down.
JAMES MACFARLANE.
&C. S. BATTERMAN."
Macfarane produced proof that the
sale had been made and then Batterman
did the baby. act and squealed. He
claimed that the bet had not been de-
cided according to the terms of the con-
| tract and called the bet off. The stake
holder paid back Macfarlanes $500 and
Macfarlane sued for the other $500. AT
the trial yesterday Mr.. Macfarlane tes-
titled as to the transaction and offered
in evidence an affidavit from Mr.. Hag-
| gin and receipt showing that the sale
had been made. A motion was made
by L. o. Evans, counsel for Chile. to
strike out the testimony on the ground
| that the proof it offered as to the sale
| was not according to the terms of the
| contract, which said Haggin should
| decide it by written statement. The
| motion was sustained and at the close
of the plaintiffs case Mr.. Evans made
| a motion for non-suit on the ground
| that there was no evidence to SUPPORT
the allegations of the complaint The
question of public policy was also rails ed
| and John j. Mediation, attorney for the
plaintiff, read a decision made by the
California supreme court which seemed
to apply very appropriately. to Batter
mans case. In the California case one
William E. Johnston, in 1868, bet one
Freeman that Seymour. candidate for
president, would set majority ofsthe
votes in California. When he lost his
bet he notified the stakeholder, P H.
Russell. that he repudiated it, but Rus
sell had already paid the money to
Freeman and Johnston sued to recover
his money The California court, in
| passing on the case, said, quoting Sena-
tor Sanford in another case:
I'm contracts of hazard the condition
of the parties aftertthe uncertain event
has happened is extremely different
| from their situation before. Before the
event has happened and while it is I'M
| certain who will be the winner, or loser,
neither is much injured. and perhaps
not at all. by declaring the contract
void The parties, are treated alike:
neither of them can complain. and if it
be necessary for the public good that
| the contract should not proceed further,
| the decision is made Without any sacri-
| flee of justice between the parties. Not
| so If the hazard has ceased and the
wager has been lost or Won, according
to the contract. A very different rela-
| ton between the parties then takes
place. If the losing party may vacate
| his contract after the event has hap
pened and is known, he is allowed to
practice frauds upon the adverse party.
To allow the loser atoN retract his con-
tract, because he, is 'loser,TW would give
sanction to the grossest perfidy and in
justice. If this partXsswins, he profits
by the contract and takes the fruit of
it; If he loses, he abjures the contra ct
and eXonerates himself from the obli-
cation; if he wins, he holds the wager
by the laws of honor; if he loses, he re-
fuses payment, or reclaims the wager,
| if paid, by the laws of the land. Ac-
cording to the result, he avails himself
| either of the laws of honor or the laws
| of the land. While the event is uncer-
| tain and unknown he stands upon the
| laws of honor. When it has happened
and is against him he retireS to the avs
| of the land. While he contracts upon
! the basis of hazard he incurs no risk.
| While he is himself wrapped in impene-
| trable armor he contends with naked
| adversary. When he talks of contin-
gency and hazard he means certainty.
When he promises he deceives; and
while he pledges his faith, he betrays.
| 1t is only the loser who repents. How
ever bitter and sincere his repentance
may be, it is not that he has offended
against public policy, but that he has
| lost his money. To prove the sincerity
of his repentance and as an atonement
for his sin against public policy. he pro-
poses to cheat his adversary, and take
back his own money after 1T has been
| lost.
IF the parties to any illegal wager
repent and desire to withdraw before
the wager has been decided, let them be
| encouraged to do so by allowing them
ito recover their stakes from each 9th ar,
| or from the stakeholder, if one has been
employed. In times of political excite
ment persons may be provoked to make
wagers which they may regret in their
cooler moments. No obstacles should be
| thrown in the way of their repentan re,
and If they retract before the bet has
been decided their money ought to be