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GARRATT v. BAKER et al.*
The plaintiff sued to recover a judgment for money claimed under an alleged contract. The defendants filed a demurrer in which they alleged that the complaint was insufficient and in which they also made certain attacks claiming the complaint was ambiguous and unintelligible. The demurrer was sustained without leave to amend. Notice of the ruling was served on September 11, 1934. The next day judgment in favor of the defendants was entered. On the same day the plaintiff served a notice of motion to vacate the judgment and order sustaining the demurrer and to grant leave to amend. At the same time she served a copy of her amended pleading. When the motion came on for a hearing it was denied. From the judgment and also from the order refusing to vacate the judgment and to grant leave to amend the plaintiff has appealed. The original complaint and the amended complaint are so similar in terms that we will address ourselves to the amended complaint. If it did not state a cause of action, it follows that the trial court did not err in rendering the judgment or in making the order, both of which have been appealed from. The amended complaint was as follows:
“Plaintiff complains of defendants, and for cause of action alleges:
“I. That Edward C. Garratt died at the County of Alameda, State of California, on the 19th day of November, 1932; that at all times herein mentioned during the lifetime of said Edward C. Garratt plaintiff was his wife, and is now his widow;
“II. That the defendants, being then married men, and the said Edward C. Garratt, during the lifetime of the said Edward C. Garratt, the exact date being unknown to plaintiff, at the City and County of San Francisco, State of California, in consideration of their mutual promises, agreed among themselves that to the widow of the first of them to die, the two survivors would pay monthly in advance the sum of $500.00 per month so long as said survivors and said widow should live;
“III. That the said wives of the defendants survived the said Edward C. Garratt;
“IV. That on the respective dates hereinafter mentioned the defendants paid to the plaintiff upon and pursuant to said agreement the following sums, and none other, towit: (Here monthly sums are specified.)
“V. That there is now due and owing from the defendants to plaintiff upon said agreement the aggregate sum of $4,750.00, and that plaintiff has demanded of the defendants, and each of them, payment of said sum, and neither the same nor any part thereof has been paid.”
In support of her pleading the plaintiff claims that the agreement alleged constituted a contract of insurance. In another place she claims that she had pleaded a contract made for the benefit of a third person. In reply the defendants assert the agreement was not a contract of insurance but that it was a wager.
As to the contention that the purported contract was one made in behalf of a third person we think it may not be sustained for the following reasons. Section 1559 of the Civil Code provides: “A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.” But the facts as alleged show that the surviving parties have attempted, at least, to rescind the agreement. The force and effect of that attempt depends on what follows.
It is claimed that it was a contract of mutual insurance. But by a contract of mutual insurance one party is designated as the insured and he, in turn, becomes the insurer of others. Turning to the pleading it will be seen that the agreement as alleged did not, and could not, operate to insure but one person.
As a contract of insurance, it will be conceded the agreement could have been oral or it could have been in writing. But, whether oral or written, to be a contract of insurance it should have measured up with the calls of the statute. Section 2587, of the Civil Code provides: “A policy of insurance must specify: 1. The parties between whom the contract is made; 2. The rate of premium; 3.The property or life insured; 4. The interest of the insured in property insured, if he is not the absolute owner thereof; 5. The risks insured against; and, 6.The period during which the insurance is to continue.” From the pleading it appears at once that no premium was named, but furthermore the insured was not to pay any premium. The sum of $500 mentioned was but an installment of the total agreed to be paid to the beneficiary. The “life insured” was not specified, but depended on the future events as to its being the life of any one of three different persons. That omission was not only fatal to a contract of insurance but would be as to any contract. Clark v. Great Northern Ry. Co. (C. C.) 81 F. 282. “The period during which the insurance is to continue” is not fixed but depends on the subsequent happening of events as to which man died first and when such man did die, but not until then was the period fixed. Again section 2558 of the Civil Code provides: “Every stipulation in * * * every policy executed by way of gaming or wagering, is void.” That requirement brings us to the consideration of another attack by the defendants.
In their brief the defendants say: “Upon the adventure stated in the complaint in this action, there never could be but one winning widow. She would take the whole stake. The identity of the winning widow to be thus favored–perhaps–was as uncertain as the winner in any unfixed horse race.” The rule of law applicable was under consideration in Hankins v. Ottinger, 115 Cal. 454, 47 P. 254, 40 L. R. A. 76. On page 458 of 115 Cal., 47 P. 255, the court cites and quotes from Harris v. White, 81 N. Y. 532. In the latter case, at page 539, the court said: “A bet or wager is ordinarily an agreement between two or more, that a sum of money or some valuable thing, in contributing which all agreeing take part, shall become the property of one or some of them, on the happening in the future of an event at the present uncertain; and the stake is the money or thing thus put upon the chance. There is in them this element that does not enter into a modern purse, prize or premium, viz.: that each party to the former gets a chance of gain from others, and takes a risk of loss of his own to them. ‘Illegal gaming implies gain and loss between the parties by betting, such as would excite a spirit of cupidity.’ (People v. Sergeant, 8 Cow. 139.) A purse, prize or premium is ordinarily some valuable thing, offered by a person for the doing of something by others, into the strife for which he does not enter. He has not a chance of gaining the thing offered; and if he abide by his offer, that he must lose it and give it over to some of those contending for it is reasonably certain. Such is the meaning of the words now, in common understanding, in the practical use of them, and in the legislative purview, as will be seen by the citations which we make.” In the instant case the promise made by each husband was not one “* * * offered by a person for the doing of something by others, into the strife for which he does not enter.” The contest therefore was not one for a purse. Furthermore, in a contest for a purse the one who offers it “* * * has not a chance of gaining the thing offered; and if he abide by his offer, that he must lose it and give it over to some of those contending for it is reasonably certain.” We think the facts alleged bring this case within the definition of a “bet or wager,” as that definition is set forth in the quotation first made from Harris v. White, supra.
The defendants make the further point that the agreement as alleged is invalid for want of consideration to support it. The plaintiff does not claim there was any material consideration; but she relies on the mutual promises of the three husbands which each made to the other. Without any consideration therefor each made a promise to make payments in the future. In other words, each promised to make certain gifts. Such promises were void. 28 C. J. 648, § 42; Zeller v. Jordan, 105 Cal. 143, 148, 38 P. 640. One void promise did not create a valid consideration for another void promise. 13 C. J. 329, § 172; Denver Pressed Brick Co. v. Le Fevre, 25 Colo. App. 304, 138 P. 434, 436; Huttig v. Brennan, 328 Mo. 471, 41 S.W.(2d) 1054. Stating the rule another way, a promise for a promise is a sufficient consideration only when mutual, concurrent, and obligatory upon each of the promisors. 13 C. J. 327-329; Brown v. Brew, 99 Wash. 560, 169 P. 992; Mowbray Pearson Co. v. E. H. Stanton Co., 109 Wash. 601, 187 P. 370, 190 P. 330; Shortell v. Evans-Ferguson Corp., 98 Cal. App. 650, 660, 277 P. 519. No one will claim that a promise to make a gift is obligatory. It follows that the agreement as made was void.
The judgment and order appealed from are affirmed.
STURTEVANT, Justice.
We concur: NOURSE, P. J.; SPENCE, J.
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Docket No: Civ. 9679.
Decided: April 03, 1935
Court: District Court of Appeal, First District, Division 2, California.
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