Amador ledger., 1910-04-29
MCGEE vs..
BER6AVIN
Full Text of Court Decision
In Favor of plaintiff


California, in and for the county of
Amador
VIM. ]. Mcgee, plaintiff, VS.. A. NJ
Bergevin, defendant.
This is an appeal from the Justices
court of township one The appeal
having been taken on questions of both
law and fact trial de novo was had in
this court.
Plaintiff seeks to recover from the
defendant the sum of $3.50. with in
terest from June 20, 1908.
There was a conflict of evidence in
some particulars at the trial. but by a
fair preponderance the following facts
were established;
Defendant solicited plaintiff, while
at breakfast at the Cosmos club at San
Francisco, on the 18th day of April
1907, to become the purchaser of 200
shares OF the capital stock of Pittsburg
Silver Peak, mining corporation, then
selling for the sum of 81 per share at
the same time stating that he could
guarantee that the stock would be worth
S.. 90 per share by Jan. 1st. following,
and that he would put up his check for
$500 TO secure plaintiff, if plaintiff
would put up his own check for a like
amount to be paid TO defendant, If the
stock became worth that sum on Ian.
1St.
Needless to state this tempting offer
which assured to plaintiff a profit Of
Sl0C, within g few months, upon an
investment Of S40U was readily accepted
by plaintiff, and each party deposited
check for $500 with the secretary OF the
club, subject to the terms proposed.
The check depos teddy defendant how
ever, was not his individual check, but
was the check Of A. M. Bergevin & Co.
upon the California Safe Deposit &
Trust Company, bank of San Fran
cisco, which prior to the first day of
January following failed, but plaintiff
had no knowledge that the check de-
posted by defenadnt was other than the
individual check of defendant until after
the failure OF the bank. Plaintiff in
accordance with the agreement of the
parties procured from a broker 200
shares OF Pittsburg Silver Peak at the
outlay of $400; This stock failed to
soar to IS by January following, but on
the contrary appears to have deprecated
in value to 90 cents per share, for which
amount per share, il was subsequently,
disposed Of Plaintiff having declined
to accept the worthless check of
Bergevin q Co, in February following
secured an agreement from the
defendant whereby the latter promised to
pay to plaintiff the sum of $500 at Jack
son in this county, upon the condition
that plaintiff should deliver to defendant
six months option upon the Pittsburg
Silver Peak stock at Sl.40 per share,
as Bergevin still professed to be inspired
with the hope that it would soon reach
the quotation of S.. Thereafter defendant
made payments on account aggreeating
$3.50, and it was then agreed that defen-
dant might pay the balance of $3.50, or
deliver to plaintiff 1900 shares of the
capital stock of the Kewanas Co. He
failed to do either, hence this action.
Defendants contention is that the agree
ment between the parties is a mere bet
or wager hence void, while it is plain
titf's claim that it is not a wager and
even so, he is entitled to recover upon
the subsequent agreement made in the
month of February, as being new, sep
arate and lawful transaction.
The term wager is not to be confused
with that of mere speculation, risk or
hazard. 1t is often defined in the book S
as contract in which the parties stip-
ulate that they shall gain or lose upon
the happening of an uncertain event in
which they have no interest except that
arising from the possibility of such gain
or loss. -
The principle as to what interest is re-
quired to eliminate the unlawful wager
ing features from contract is illustrated
in the South Carolina case OF Ferguson
VS. Coleman, As Am. Dec. 76l, where
vendee promised to pay $500 for tract
of land, or if cotton should rise to 8
cents by certain time, then the price
should be 1902. 1t was held that the
agreement was not a wager upon the
price OF cotton but a lawful contrac
based upon the enhanced value OF the
land by the increased value of its pro-
duct.
Had the agreement between McGee and
Bergavin made no provision for the pur-