The rule of law in regard to the right of a failing debtor to give a preference to some of his creditors, have no application to a sale for cash to a person not a creditor, although the proceeds may have been applied to pay creditors. Marnlock vs. White, 20 Cal. 598.

CHAPTER XVII.

WAGER, CONTRACT OF.

SECTION 1. Wager.-A wager is a bet; a contract by which two parties, or more, agree that a certain sum of money or other thing, shall be paid or delivered to one of them on the happening or not happening of an uncertain event. Bouv. Law Dict. 617.

SEC. 2. All notes, bills, bonds, mortgages or other securities or conveyances, whatever, in which the whole or any part of the consideration shall be for any money or goods, won by gaming or playing at cards, dice or any other game, whatever, or by betting on the sides or hands of any person gaming, or for reimbursing or repaying any money knowingly lent or advanced for any gaming or betting, or lent or advanced at the time and place of such gaming or betting, shall be void and of no effect, as between the parties to the same and as to all persons, except such as shall hold or claim under them in good faith and without notice of the illegality of the consideration of such contract or conveyance. Gen. Laws, 3324.

SEC. 3. When Recoverable.-Wagers are recoverable in this state as at common law, except such as are prohibited by law, or are against public policy, or calculated to effect the interest, character or feelings, of third parties. Johnson vs. Fall, 6 Cal. 359.

SEC. 4. Bet on Elections.-A party placing money in the hands of another for the purpose of making a bet on an election, in the name of the bailee but for the benefit of the bailor, may retract the illegal act of making the bet, and does not forfeit the money by reason of the illegality of the

purpose for which it was deposited. Hardy vs. Hunt, 11 Cal. 343.

SEC. 5. Bailor.-The bailor does not part with the ownership by allowing it to be used for his benefit, though in the name of another. The money in the hands of the agent remains, as between him and the principal, the money of the principal. 11 Cal. 343.

SEC. 6. Retraction.-Upon the retraction of the wager, the right to the possession of the money is in the agent or bailee, and he may maintain an action for it where the bailor interposes no objection. 11 Cal. 343.

SEC. 7. Money won at play cannot be recovered at common law. 2 Cal. 81.

SEC. 8. No action will lie to recover money lost at play in a common gaming house. The practice of gaming is vicious and immoral in its nature, and ruinous to the harmony and well-being of society. 3 Cal. 329.

SEC. 9. The plaintiff, being the keeper of a public gaming room, won of the defendant four thousand dollars at the game of faro. The money not being paid, an action was brought to recover it: Held, that it could not be sustained. Such a debt was not recoverable at common law. Doubted, 2 Cal. 66; affirmed, 3 Cal. 329; 1 Cal. 441:

1st. Four thousand dollars, if won under any circumstances, at what is called a round game, and in a private room, could not be recovered, because the amount is so large as to be excessive.

2d. The fact of its being won at a bank game, such as faro, makes its recovery unlawful.

3d. That is, being won at a common gaming house, by the owner and keeper thereof, would alone bar the recovery. Doubted, 2 Cal. 661; 1 Cal. 443, 444.

SEC. 10. At common law, all wagers were recoverable, except such as were prohibited by law, were against public policy, or calculated to affect the interest, character or feelings, of third parties. The common law having been adopted as the rule of decision in this state, it must be enforced, leaving all questions of its policy, as applied to a particular class of contracts, for the consideration of the legislature. 6 Cal. 361.

SEC. 11. A wager on an election is illegal and void, as against public policy; the direct effect of such wagers being to affect the purity of elections. 11 Cal. 347. An action to recover a wager of this sort cannot be maintained. The party depositing the money for this illegal purpose, may retract the illegal act. The money is not forfeited for the benefit of the stakeholder. He holds it as bailee of the depositor, who may resume it at any time before it is paid over to the winner. 11 Cal. 348.

SEC. 12. Wagers which tend to excite a breach of the peace, or are contra bonas mores, or which are against the principles of sound policy, are illegal; and no contract arising out of any such illegal transaction can be enforced. These are principles of the common law which have been adopted in this state. 1 Cal. 444.

SEC. 13. Wagers.-At common law, wagers made in respect to matters not affecting the feelings, interest or character, of third persons, or the public peace or good morals, or public policy, are legal contracts, which may be enforced by action. 37 Cal. 607.

SEC. 14. Wagers upon Elections.-Wagers upon the result of elections are against public policy, and are therefore void; and hence money put up in the hands of stakeholders may be recovered if the wager be repudiated and a return of the money be demanded at any time before the election. has taken place, and the result has become generally known, but not thereafter. 37 Cal. 607.

SEC. 15. J made a wager with F, that Seymour would receive a majority of the votes cast in this state at the presidential election in 1868, and F made a wager with J, that Grant would receive a majority of said votes; the money was put into the hands of R, a stakeholder. After the election had taken place and the result had become known, J, having lost his wager, and demanded his money, but R, notwithstanding paid the money to F according to the terms of the wager. In an action by J against R to recover his stake, it was held that a recovery could not be had. 37 Cal. 607.

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SECTION 1. Contracts for Work, Labor and Services.These may be under seal, in writing, without seal and oral. They are frequently for work and labor, and material furnished or used in the service, as where I employ a carpenter to build me a house and furnish a portion of all the material. They are subject to all the general rules which govern contracts in relation to the sufficiency, legality and morality, of their consideration, and to the rights of the parties claiming under them. The contract may be express in all its parts, or it may be express only in relation to the manner the service is to be performed, leaving the time of performance and the price of the service to be implied. It may also be implied from the circumstances of the person for whom the service is performed and his obligation to have it performed; as, where a physician attends his child who is taken suddenly ill and requires his services. Cowen's Treatise, 108.

SEC. 2. Where there is an express contract for a particular amount and mode of payment, the party rendering the services must rely upon it. Thus, if I employ a man to build a house at a certain price, mentioning no time of payment, he will not be entitled to his payment until he has finished it. If I hire a laborer for one year at the rate of twelve dollars a month, without a special clause in the contract, he cannot recover his wages until the end of the year. 8 Cow. 63.

SEC. 3. Where the agreement is to perform a particular piece of work, or to labor for a certain period, whether the price is or is not specified in it, the person employed acquires no right to any part of his compensation until he has fully performed his part of the contract. The contract is

considered entire, and he cannot perform a part of it by doing a portion of the work, or working a portion of the period and then breaking off without his employer's consent, without not only forfeiting all right to recover for what he has done or the time he has labored, but also rendering himself liable for breach of his contract. Thus, where M agreed to work for P for a year, and worked ten months and a half and left, refusing to work longer, but in two days returned and offered to fulfill his contract, it was held, that having wantonly deserted P's service without his fault, he was guilty of violation of the contract, and P was under no obligation to receive him again or to pay him for his services for the ten months and a half. 8 Cow. 63.

SEC. 4. So, where one contracted to cure a flock of sheep of the scab, he was not permitted to recover for his services in curing a part, the remainder not being cured. 6 D. & R. 3.

SEC. 5. Where, however, the person contracting to do the service is an infant, and he performs a portion of it, he may recover what is the reasonable value of the services performed. 2 Pick. 332.

SEC. 6. The rule in relation to ordinary employment of a servant for a limited period, where a portion of the service is performed, and the remainder prevented by death or illness of the servant, and not by his willful default, is that he shall be paid for the time actually spent in the service its proper proportion of the price. 6 Pick. 326.

SEC. 7. In contracts for work and labor between masters and servants, there may be misconduct on the part of either master or servant which will justify the other party in rescinding the contract. Thus, if a master so maltreat his servant that he cannot safely remain in his employment, or as to indicate a willingness to be rid of him, the servant may leave him and recover his wages for the time he has served. But the employment of harsh language alone is not sufficient to warrant him in leaving. So, if the servant conducts himself improperly, as, if he assaults another of his employer's servants with intent to ravish her, or if he refuse to perform a reasonable command of his master, he may dismiss him, and the servant, although hired by the