It is quite clear that his lordship considers the obligation of an agent who has received money won on a wager on behalf of his principal, to pay over what he has received is in no way a wagering transaction in itself, though it may arise out of such. This seems in accordance with the view of Baron Pollock in Beeston v. Beeston[[122]], that the statutes only apply to contracts as between the parties to the wager.
This view of the matter has lately been confirmed by the Court of Appeal in Bridger v. Savage[[123]], so that Beyer v. Adams must be considered as overruled. Seeing, however, that in these cases the transactions were not illegal, they must not be considered as deciding a somewhat vexed question whether a principal agent or a partner can recover, and where the transactions are illegal, |Qy. if transaction illegal.| as for instance, under the Gaming House or Betting House Acts, we shall deal with this subject in the chapter on such establishments.
Actions of this description, that is, by principals against their agents for money received, have of late been numerous, as well as by agents against their principals to recover commission and reimbursements; but of this latter class of action we speak later on. Experience seems to show that the advantage is on the side of the agent, seeing that the plaintiff has to prove facts which are generally solely within the agent’s knowledge. |What principal must prove.| (1) The agreement between himself and the agent. Where this agreement is in writing, as where the parties have contracted on the footing of written conditions, the difficulty should not be great; but frequently the instructions are given verbally. (2) That the agent made the bet in his, the plaintiff’s, behalf. If he did not, of course no action could lie for money had and received. |Cohen v. Kittle.| In the case of Cohen v. Kittle[[124]] this difficulty was felt; consequently an alternative claim was inserted in the pleadings for damages for breach of contract in neglecting to make the bet. The case was ultimately fought in the question whether such an action was maintainable. The Court held chiefly on the authority of Webster v. De Tastet[[125]] that no such action would lie, seeing that even if the agent had made such a bet the plaintiff could not have enforced it legally against any third party.
It is, however, submitted with great deference that this decision is incorrect. It appears to confuse two distinct questions: (a) whether the action would lie; (b) proof of damage sustained. Betting contracts not being illegal there would seem to be no reason why the breach of an agreement to make a bet should not be a cause of action. Webster v. De Tastet was an action to recover commission on a policy contrary to the policy of the law. It, moreover, did not appear that there was any conventional forum by which such a policy could have been enforced. In most betting transactions the agent belongs to a club, the committee of which would enforce any bet that was made against a defaulter by the penalty of expulsion.[[126]]
The Gaming Amendment Act.
It is noticeable that Lord Herschel’s Act, the Gaming Act Amendment Act, of which further mention will be made hereafter, while preventing an agent from recovering commission or reimbursement from his principal, does not contain a reciprocal restriction on the principal’s right to recover winnings from his agent; consequently the principal’s rights against his agent, as established by the cases above quoted, remain untouched. Seeing, however, that, by Lord Herschel’s Act, the agent cannot recover his commission in respect of his services, he would seem now to be in the position of a gratuitous agent, in which case no action would lie against him at the suit of his principal for neglecting to carry out his instructions unless, semble, he receives his commission in advance.
(3.) The plaintiff also has to show that the agent received the money in respect of his bet. This proposition scarcely requires authority. See, however, the dictum of Hawkins, J., in Cowan v. O’Connor;[[127]] but it is sometimes a difficulty in the plaintiff’s way. No doubt it is not necessary to show that actual cash passed. |Payment by set off.| If the agent settled with the bookmakers by balancing accounts with him, this would no doubt be equivalent to payment.[[128]]
Estoppel of agent.
The case of Moore v. Peachey[[129]] will no doubt go some way to remove the plaintiff’s difficulty in this respect. Charles, J., held that the defendant having entered into an agency agreement, and from time to time rendered accounts to the plaintiff, showing bets to have been made and moneys received or paid on his behalf, was estopped from denying the truth of his representations.
It must, however, be admitted, for it is common knowledge, that the documents passing between the supposed principal and agent do not represent the real facts. In a majority of such cases the agent is a myth; he is in reality a bookmaker making a book with his different clients, that is if his clientèle is sufficiently large. If not, a common course of business (and this has frequently been proved in the Courts) is for him to lay his clients the odds at a point or two below the market odds, and “back the horse back” in a club at the longer odds. Of course, if this be professedly his business, he is amenable to the provisions of the Betting House Act (as to which see post). That is no doubt the reason why he affects to act as agent; but Moore v. Peachey (ubi sup.) says that he cannot afterwards turn round and say he was a principal.