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Action for money had and received. Fulton Civil Court. Before Judge Camp.
Where the plaintiff and the defendant jointly participate in a prohibited lottery or gift enterprise, a suit for money had and received will not lie as to funds derived therefrom which are in the defendant's possession.
Appellant, John M. Kelly, filed a petition in the Civil Court of Fulton County on March 27, 1967. The facts alleged by the petition were in substance: that plaintiff and defendant, John P. Banda, appellee here, were employed at the Lockheed-Georgia Company; that, during September 1966, the Reuben H. Donnelly Corporation conducted a football contest for the Emerson Radio Corporation; that entry blanks for the contest were furnished by the Emerson Radio Corporation; that the contestants in the contest were to pick the champions of the American Football League and the National Football League; that the grand winner of the contest would be drawn when the contest closed from the group of entry blanks that had correctly picked the winners of the two leagues.
Attached to the petition was a copy of the entry blank which was made a part of the petition. The "Contest Rules" printed on the copy of the entry blank state that the entry blank is to be deposited at any Emerson dealer's showroom in the official "Run for the Money" ballot box, and that entries submitted through the mail will be disqualified. The rules go on to state that all contestants correctly naming the two winning teams will be eligible for the sweepstakes prize drawing, and that winners will be selected on the basis of a random drawing, the order of draw determining the prize won. The prizes also are listed on the entry blank, right above where it is stated that "Any participating Emerson dealer will take your winning entry blank. He'll also show you his winners. Touchdown Deal priced Emersons."
The petition further alleges that, during early September 1966, the defendant approached the plaintiff about the proposition of their entering the contest, and that on or about September 13, 1966, plaintiff and defendant entered into an oral agreement that they would enter the contest and that, if either party won any prize, they would divide it, share and share alike. The petition further alleged that as a part of the agreement that plaintiff was to use his expert knowledge to furnish the information on the football teams and defendant was to furnish the free entry blanks; that the plaintiff and defendant filled out about three hundred blanks; the these were then entered in the name of defendant and deposited in the official ballot box, found at an Emerson dealer showroom, by the plaintiff; that plaintiff and defendant won the first prize of the contest; that an Emerson Radio Corporation official presented to the defendant a check; that the defendant "received and collected to and for the use and benefit of plaintiff approximately" $10,500, which sum the defendant refused to pay to the plaintiff upon demand; that such sum belongs to plaintiff and that this action is brought in assumpsit for money had and received.
To the appellant's original petition the appellee filed demurrers as follows: (1) generally to the petition as a whole on the ground that it fails to set forth any cause of action; and (2) generally to the petition as whole on the ground that it seeks to enforce a contract, entered into during the pendency, in furtherance of, and with respect to the subject matter of a gift enterprise scheme or lottery which is illegal and contrary to public policy.
The demurrers were sustained and the case is here for review.
Under the principle pronounced in Boyd v. Piggly Wiggly Southern, 115 Ga. App. 628 (155 SE2d 630), the money for which this suit is brought came into the defendant's possession through the joint participation of the defendant and plaintiff in a prohibited lottery or gift enterprise. In the Boyd case, it was held (p. 632): "our courts have uniformly refused to lend their aid in wither law or equity to enforce contracts between promoters and participants, or to settle disputes between promoters and participants, where the contracts or disputes are grounded in lotteries or gift enterprises which are illegal and contrary to public policy. Whitley v. McConnell, 133 Ga. &38 (66 SE 933, 27 LRA (NS) 287, 134 ASR 223)." Hence, in the case sub judice an action for money had and received does not lie.
The holding in the Boyd case, supra, and the pronouncement in the Rudisill case, supra, are not in conflict. As against the "true owner" it is immaterial how the money may have come into the defendant's possession; however, one who claims money as a participant in a prohibited lottery or gift enterprise is not a "true owner." A true owner must be a lawful owner.
The sustaining of the demurrers was not error.
Judgment affirmed. Jordan, P. J., and Deen, J., concur.
Troutman, Sams, Schroder & Lockerman, William H. Schroder, John D. McLanahan, William H. Schroder, Jr., for appellee.
Philip T. Keen, Wilson Brooks, for appellant.
Friday May 22 19:25 EDT

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