Lottery. Voting Contest. Bills and Notes, Validity, Holder in due course. Practice, Civil, Requests and instructions. Words, "Lottery."
A "voting contest," so called, conducted by a merchant, whereby to purchasers of merchandise at his store he gave blank votes which they could use for themselves or deliver to others, and to the persons whose names received the highest number of votes he gave prizes, all persons concerned knowing in advance that the contestants having the most votes at the end of the contest would be entitled to the prizes and the only way to procure the votes being by purchasing goods of the defendant or by procuring them from other contestants, is not a "lottery" nor within the prohibitions of R. L. c. 214, § 7.
A promissory note, payable in instalments and given for merchandise to be used in carrying on a voting contest as above described and to one who promoted the contest for the merchant, is not invalid.
In an action against the merchant by or in behalf of an indorsee of the promissory note above described, it appeared that the note was indorsed and delivered for value before maturity to one who, under an agreement with the payee, already had advanced money to him on account of other such notes, but it did not appear that the indorsee knew anything of the prize contest; and it was held, that the indorsee, being a holder in due course, could recover on the note even if the voting contest were tainted with illegality.
A request for an instruction to a jury, which is framed in an argumentative form and emphasizes facts selected by the party making the request in his interest, need not be granted.
De COURCY, J.
The defendant purchased by a conditional bill of sale from Thomas Howard Company (not incorporated) a piano, fourteen dozen assorted pieces of silverware, and some advertising literature, intending thereby to carry on a voting contest in his store, for the purpose of increasing his business. He also signed an instalment promissory note for $400 in payment for the goods. Howard indorsed and delivered the note to Knauth, Nachod and Kuhne, bankers, as security for a loan; and later they assigned it to the plaintiff, to enable him to bring this action thereon to enforce collection. A verdict was rendered for the plaintiff for the balance due, with interest.
The contention of the defendant is that the note was given to promote a lottery. We assume, in his favor, that this question was raised by his first request and by his exception to the judge's instruction to the jury, that this prize contest did not constitute a lottery. Our statute which prohibits the disposing of any property of value by way of lottery, (R. L. c. 214, § 7,) does not attempt to define the word. But, as was said in Commonwealth v. Mackay, 177 Mass. 345, 346: "Both in the popular and legal sense, the word 'lottery' signifies a scheme for the distribution of prizes by chance." For various definitions formulated by lexicographers and courts see Cent. Diet.; Bouvier's Law Diet.; 17 R. C. L. 1209; 3 Words Phrases, (2d ser. 191.)
While some of the methods suggested for conducting the piano contest may well be criticized, so far as appears there was no gambling element of lot or chance in the transaction, and no evidence on which the jury would be warranted in finding that essential element. See Commonwealth v. Sullivan, 146 Mass. 142; Commonwealth v. Sisson, 178 Mass. 578; Opinion of the Justices, 226 Mass. 613, 616. All persons concerned knew in advance that the contestant having the most votes at the end of the contest would be entitled to the piano or other prize. The only way to acquire those votes was by purchasing the merchandise of the defendant, or by procuring them from other contestants.
Further, it does not appear that the bankers knew anything about the prize contest; and even if the transaction were tainted with illegality, that would not prevent recovery on the note by an innocent holder for value. Fuller v. Hunt, 182 Mass. 299.
The judge was not bound to adopt the language of the defendant's second request, which was framed in an argumentative form and emphasized facts selected in his interest, Altavilla v. Old Colony Street Railway, 222 Mass. 322; and it is to be presumed that appropriate instructions were given to the jury.
Assuming that the genuineness of the indorsement of the payee was put in issue by the defendant's answer (see R. L. c. 173, § 86; Whiddon v. Sprague, 203 Mass. 526), there was ample evidence to establish it in the depositions of Knauth and of Knust.
Exceptions overruled.