Wager

A bet; a contract by which two parties or more agree that a certain sum of money, or other thing, shall be paid or delivered to one of them on the happening or not happening of an uncertain event.

See Merchants’ S., L. Sc T. Co. v. Goodrich, 75 111. 560.

A contract upon a contingency by which one may lose but cannot gain, or the other can gain but cannot lose, is a wager; Shumate v. Com., 15 Gratt. (Va.) 653; but there must be a risk by both parties; Quarles v. State, 5 Humph. (Tenn.) 561. In Cassard v. Hinman, 1 Bosw. (N. Y.) 207, it was said: w wager, though a wager is not necessarily a bet.” At common law, wagers were not, per se, void; Johnston v. Russell, 37 Cal. 670; Monroe v. Smelley, 25 Tex. 586, 78 Am. Dec. 541; but if they were foolish, or tended to annoy others or outrage decency, they were discountenanced; Odger, C. L. 727. See [1907] 1 K. B. 758, for the history of the law of gaming contracts, in the judgment of Fletcher Moulton, L. J. By an English statute passed in 1845, wagers were prohibited, and similar statutes have been passed in many of the states.

See Dos Passos, St. Br. 409; Margins.

Where a contract is a mere device to avoid the statute, it is illegal, but the burden of proving its illegality is upon the defendant; Rigelow v. Benedict, 70 N. Y. 202, 26 Am. Rep. 573; and the intention of the parties is for the jury; 20 E. L. & E. 290; Kirkpatrick v. Bonsall, 72 Pa. 155. Where both parties to contracts for the sale and purchase of stocks intend that no stocks shall be delivered and that “differences” only shall be accounted for, the mere fact that the contracts provide that either party may require completion of the purchase and delivery or receipt (as the case may be) of stocks, does not prevent them from being contracts by way of gaming and wagering within Gaming Act 1845, and therefore void; [1896] A. C. 166; [1905] 1 Ch. 307; [1911] 1 K. B. 70. The true test of the validity of a contract for future delivery is whether it could be settled in money or whether the party selling could tender and compel acceptance of the particular commodity; Sampson v. Cotton Mills, 82 Fed. 833; and a contract for the sale of a commodity for future delivery is valid if the parties intend a future delivery, but Invalid if none is contemplated, but only a payment of the difference between the contract and the market price; Board of Trade v. Stock Co., 198 U. S. 236, 25 Sup. Ct. 637, 49 L. Ed. 1031; Edgerton & Son v. J. T. Edgerton & Bro., 153 N. C. 167, 69 S. E. 53; Raymond v. Parker, 84 Conn. 694, 81 Atl. 1030. Where the parties contemplate an actual delivery of the commodity, the contract is not a gambling contract, though it provides it may be settled by a money payment upon failure to deliver actual cotton; Daniel v. Reeves, 139 Ga. 646, 77 S. E. 1067; even where the principals may not be able to enforce the contract and the broker through whom the- transaction is made is ignorant of their intention, he cannot recover for money paid out in commissions; Ware v. Pearsons, 173 Fed. 878, 98