A "wager" has been defined as a contract conditional upon an event in which the parties have no interest except that which they create by the wager;3 but this attempts to limit the term to contracts not permitted by law, and is not broad enough. Parties may make a wager on a matter in which they are interested. It is more accurate to say that a wager is a promise to pay money or transfer property upon the determination or ascertainment of an uncertain event or fact, the consideration for the promise being either a present payment or transfer by the other party, or a promise to do so upon the event or fact being determined or ascertained in a particular way.4 The term is often applied to contracts not permitted by law, as opposed to others which, though precisely similar in their nature, may be enforced, and this has resulted in some confusion.
A wager may be what we understand by a "bet" - that is, a purely gambling transaction - or it may be directed to commercial objects. A man who bets on the result of a horse race makes a wagering contract; but so does a man who takes out a policy of insurance, for he bets on the safety of the property insured, or on the duration of the life, as the case may be. In the latter case the contract may be valid, but it is nevertheless a wager.5
2Farmers' & Mechanics' Nat. Bank v. Dearing, 91 U. S. 29, 23 L. Ed. 196. Bee "Banks and Banking" Dec. Dig. (Key-No.) § 270; Cent. Dig. §§ 1023-105S.
3Leake, Cont 377. By the terras of a note, given In part payment of land, defendant promised to pay .$900 if cotton should rise to 8 cents by a certain date, and, if not, to pay $500. It was held that the agreement was not a wager on the price of cotton, "for the parties had an interest in the contingency. The defendant purchased the land at the lowest price, unconditionally, but contracted to pay a larger sum if the value should be enhanced by the increased value of its product" Ferguson v. Coleman, 3 Rich. (S. C.) 99, 45 Am. Dec. 761. A contract by which a party purchases 50 bushels of "Bohemian oats" at $10 a bushel, and the seller agrees to sell for him the next year 100 bushels at $10 a bushel, has been held not to be a gambling contract. Shipley v. Reasoner, 80 Iowa, 548, 45 N. W. 1077; Matson v. Blossom, 50 Hun, 000, 2 N. Y. Supp. 551: Contra, Schmueckle v. Waters, 125 Ind. 205, 25 N. E. 2S1. Such contracts, however, are illegal, since they cannot be performed without defrauding some one. Hanks v. Brown, 79 Iowa, 560, 44 X. W. 811; Merrill v. Packer. 80 Iowa, 542, 45 N. W. 1076. Contra, Matson v. Blossom, supra. For similar contract, illegal because tending to defraud, see Hubbard v. Freiburger, 133 Mich. 139, 94 N. W. 727. See •'Gaming," Dec. Dig. (Key-No.) § 1; Cent. Dig. § I.
4 Anson, Cont. (4th Ed.) 173; Hampden v. Walsh, 1 Q. B. Div. 189. See "Gaming," Dec. Dig. (Key-No.) § 1; Cent. Dig. § 1.
At common law in England, over a century ago, wagers on almost all subjects were enforceable. Gradually the courts, finding that frivolous and indecent matters were sometimes brought before them for decision, established a rule that a wager would not be enforced if it led to indecent evidence, or was calculated to injure or pain a third person, and in some cases general notions of public policy were introduced to the effect that any wager which tempted a man to offend against the law was illegal.6
Aside from these cases, wagers continued to be enforced in England, and have been enforced in many of our states.7 In other states, the courts have held all wagering contracts on matters in which the parties have no interest illegal, as being contrary to public policy.8
5 Anson, Cont (4th Ed.) 174-176.
6 See Gilbert v. Sykes, 16 East, 150; Hartley v. Rice, 10 East, 22; Good v. Elliott, 3 Term R. 693; Eltbam v. Kingsman, 1 Barn. & Ald. 683; Atherford v. Beard, 2 Term R. 610; Evans v. Jones, 5 Mees. & W. 77; Ditchburn v. Goldsmith, 4 Camp. 152. And see Brogden v. Marriott, 3 Bing. N. C. 88; Ramloll v. Soojumnull, 6 Moore, P. C. 310; Bunn v. Riker, 4 Johns. (N. Y.) 426, 4 Am. Dec. 292; Rust v. Gott, 9 Cow. (N. Y.) 169, 18 Am. Dec. 497; Hill v. Kidd, 43 Cal. 615; Vischer v. Yates, 11 Johns. (N. Y.) 23. See "Gaming," Dec. Dig. (Key-No.) §§ 1-5; Cent. Dig. §§ 1-15.
7 Campbell v. Richardson, 10 Johns. (N. Y.) 406; Good v. Elliott, 3 Term R. 693; Clendining v. Church, 3 Caines (N. Y.) 141; Winchester v. Nutter, 52 N. H. 507, 13 Am. Rep. 93; Dewees v. Miller, 5 Har. (Del.) 347; Stoddard v. Martin, 1 R. I. 1, 19 Am. Dec. 643; Buchanan v. Insurance Co., 6 Cow. (N. Y.) 318; Wheeler v. Spencer, 15 Conn. 28; Johnston v. Russell, 37 Cal. 670; Wroth v. Johnson, 4 Har. & McH. (Md.) 284; Cothran v. Ellis, 125 I11. 496, 16 N. E. 646; Trenton Mut. Life & Fire Ins. Co. v. Johnson, 24 N. J. Law, 576; Wootan v. Hasket, 1 Nott & McC. (S. C.) 180; Kirkland v. Randon, 8 Tex. 10, 58 Am. Dec. 94. Wager as to shape of earth, Hampden v. Walsh, 1 Q. B. Div. 189; as to weight of hog, Mulford v. Bowen, 9 N. J. Law, 315; as to result of past election in another state, Smith" v. Smith, 21 I11. 244, 74 Am. Dec. 100; as to time within which railroad would be completed, Beadles v. Bless, 27 I11. 320, 81 Am. Dec. 231; Johnson v. Fall, 6 Cal. 359, 65 Am. Dec. 518. Bee "Gaming," Dec. Dig. (Key-No.) §§ 1-5; Cent. Dig. §§ 1-15.
8 Harvey v. Merrill, 150 Mass. 1, 22 N. E. 49, 5 L. R. A. 200, 15 Am. St. Rep. 159; Irwin v. Williar, 110 U. S. 499, 4 Sup. Ct. 160, 28 L. Ed. 225; Amory v. Gilman, 2 Mass. 1; Love v. Harvey, 114 Mass. 80; Perkins v. Eaton, 3 N. H. 152; West v. Holmes, 26 Vt. 530; Winchester v. Nutter, 52 N. H. 507, 13 Am. Rep. 93; Wheeler v. Spencer, 15 Conn. 28; Lewis v. Lit-tlefield, 15 Me. 233; Stoddard v. Martin, 1 R. I. 1, 19 Am. Dec. 643; Col-lamer v. Day, 2 Vt 144; Edgell v. McLaughlin, 6 Whart (Pa.) 176, 36 Am. Dec. 214; Thomas v. Cronise, 16 Ohio, 54; Lucas v. Harper, 24 Ohio St. 328; Bernard v. Taylor, 23 Or. 416, 31 Pac. 968, 18 L. R. A. 859, 37 Am. St. Rep. 693; Rice v. Gist, 1 Strob. (S. C.) 82; Wilkinson v. Tousley, 16 Minn. 299
There are now, both in England 9 and in this country, statutes covering the subject. There is so much difference in the statutes of the different states that it would be impracticable to attempt to give them. It is sufficient to say that in almost all the states, if not in all, the statutes make all gambling contracts either void, or both illegal and void.