Every aleatory promise where the happening of the chance upon which performance of the promise depends involves no service by or disadvantage to the promisee, for which performance of the promise may be regarded as a compensation or an indemnity, is open to the same objection. An ordinary contract of guaranty or of insurance is unobjectionable because the happening of the condition on which performance depends is injurious to the promisee and performance of the promise is in the nature of compensation for the injury.5 But if the insured has not what is called insurable interest the agreement is invalid, whether the insurance is marine,6 fire,7 or life.8 If the insured will sustain loss from the destruction of the subject-matter of the insurance, he will ordinarily have an insurable interest. It is of the essence of a gaming agreement that it is performable only upon the happening of a condition. Generally this condition will be a fortuitous event such as that furnished by an election, or a horse race, but this is not necessarily the case. A wager may relate to a trial of skill, or proof of an actual fact where the performance of the condition is or may be within the control of one of the parties.9 It is true, however, that though the condition may be within the power of one of the parties, this is not admitted by the other at the time of the bargain, and therefore as between the parties is regarded as fortuitous.10

2 Wilkinson v. Gill, 74 N. Y. 63, 30 Am. Rep. 264, quoted in Yellowstone Kit v. State, 88 Ala. 196, 16 Am. St. Rep. 38. See also Stone v. Mississippi, 101 U. S. 814, 818, 25 L. Ed. 1079; Grove Mfg. Co. v. Jacobs, 117 Me. 163, 103 Atl. 14; Roselle v. Farmers' Bank, 141 Mo. 36, 42, 39 S. W. 274, 64 Am. St. Rep. 501; Ex parts Ka-meta, 36 Oreg. 251, 254, 60 Pac. 394, 78 Am. St. Rep. 775.

3 Glennville Investment Co. v. Grace, 134 Ga. 572, 68 S. E. 301, 29 L. R. A. (N. S.) 758; Lynch v. Rosenthal, 144 Ind. 86, 42 N. E. 1103, 31 L. R. A. 835, 55 Am. St. Rep. 168; Guenther v. Dewen, 11 Iowa, 133; Wooden v. Shotwell, 24 N. J. L. 789; AUebach v. Gocfshalk, 116 Pa. 329, 9 Atl. 444. In these jurisdictions lotteries were forbidden by statute or constitution, and a variety of raffles and gift enterprises are open to the same objection.

4 See the following section.

5 For this reason the contract in Carlill v. Carbolic Smoke Ball Co., [1893] 1 Q. B. 256, - a promise by the seller of "smoke balls " to make a payment to any one who contracted influenza after using them- was unobjectionable.

On the other hand, a contract will not be open to objection because an advantage or disadvantage by the terms of the promise accrues to one of the parties on the happening of a purely fortuitous circumstance, provided that fortuitous circumstance adds to or depreciates the value of the consideration given the promisor;11 while if the fortuitous cir-

6 Moran v. Uzielli, [1905] 2 K. B. 555; Harrison v. ForUage, 161 U. S. 57, 40 L. Ed. 616; Putnam v. Mercantile Marine Ins. Co., 5 Mete. 386; Riggs v. Commercial Mutual Ins. Co., 125 N. Y. 7, 25 N. E. 1058, 10 L. R. A. 684, 21 Am. St. Rep. 716; International Marine Ins. Co. v. Winsmore, 124 Pa. 61,16 Atl. 516.

7 Baldwin v. State Ins. Co., 60 la. 497, 15 N. W. 300; Fowler v. New York Indemnity Ins. Co., 26 N. Y. 422.

8 Fuller v. Metropolitan life Ins. Co., 70 Conn. 647, 41 Atl. 4; Loomis v. Eagle Life Ins. Co., 6 Gray, 396; Judson v. Walker, 155 Mo. 166, 55 S. W. 1083; Mechanics' Nat. Bank v. Comina, 72 N. H. 12, 55 Atl. 191, 101 Am. St. Hep. 650; Ruse v. Mutual Benefit Life Ins. Co., 23 N. Y. 516.

9 Hampden v. Walsh, 1 Q. B. D. 189. Hie agreement in this case was that a certain sum was to be paid for proof of the convexity of any railway, canal, or lake, a promise being made in return to pay a like sum in case ot failure to make the proof. See also Comer v. Powell (Tex. Civ. App.), 189 S. W. 88. A lottery, however, it seems, must depend on a purely fortuitous event. See Stoddart v. Sagar, [1895] 2Q.B, 474; People v. Reilly, 50 Mich. 384, 15 N. W. 520, 45 Am. Rep. 47; Reilly v. Gray, 77 Hun, 402, 28 N. Y. S. 811. Cf. State v. Lovell, 39 N. J. L. 458.

10 See supra, $ 119.

11 In Ferguson v. Coleman, 3 Rich. L. 99, 45 Am. Dec. 761, the purchaser of land agreed to give a certain price if the market price of cotton advanced to 8 cts. a lb. by a certain day, and a smaller sum if the price did not so advance. The contract was held unobjectionable. It will be seen that the cumstance bears no relation to the value of the consideration the transaction will be a wager.12