Donahoe v. McDonald

17 S.W. 195, 92 Ky. 123, 1891 Ky. LEXIS 115

• Court: Court of Appeals of Kentucky
• Decided: October 10, 1891
• Status: Published

Opinion

JUDGE PRYOR

delivered the opinion op the court.

“ The stakeholder of any money or other thing that may be staked on any bet or wager shall, when thereto notified, return the same to the person making the stake or deposit, and for failing to do so, the amount or value of the stake may be recovered from him by tbe party aggrieved.” (Sec. 5, chap. 47, Gen. Stats.)

Donahoe, tbe appellant, wbo made tbe deposit — the-amount of tbe bet — did so as tbe agent of Mitchell and Tucker, or one of them, and upon notice to tbe appellee (wbo was tbe stakeholder) demanding a return of tbe money, and a refusal by tbe latter, be brought this action in bis own name to recover tbe deposit. Tbe defense pleaded that the bet was made by tbe appellant for tbe parties named; that it was their money, and tbe party suing bad no other intent than that as agent in making the bet.

We perceive no reason why tbe doctrine as to agency should not apply in this case as in other transactions where tbe principal acts through an agent. Where the agent is a bailee of property and bis possession molested by a wrongdoer he may- sue in bis own name for tbe wrong done him; but for a violation of contract, or for tbe recovery of money where tbe agent has transacted tbe business for the principal, tbe suit must be brought in the name of the principal. What interest has the-agent in this money deposited with tbe appellee ? None-whatever; and it can not be said that tbe statute would permit a recovery by tbe agent and then by tbe principal. It is not a penalty imposed for betting, but is a remedy by statute to enable the party aggrieved to recover bis money before it is paid over to tbe winner.

Tbe statute expressly says, “that tbe sum may be recovered from tbe stakeholder by tbe party aggrieved.” If this appellant bad notified tbe appellee that tbe money was that of Mitchell and Tucker, and that he had made the bet for them, upon his refusal to pay it over the principal could have recovered. It is the party injured, the one liable to sustain the loss, that can sue. He is the party aggrieved, and there is no reason for giving both principal and agent a cause of action. If the appellant acted as agent, he is in no wise aggrieved. He loses nothing ; hut the entire loss is with the principal. The defense was in the nature of a plea in abatement. It was not necessary that the appellee should have required the parties to interplead. The defense as to the appellant prevented his recovery.

Judgment affirmed.