Millsaps v. Urban

(after stating the facts). No point is made as to the illegality of the transaction out of which this litigation arose. No contention is made that this was a (lottery, or that the element of chance entered into the award of the prize. Had such been- the case, the entire transaction would have been illegal and the courts would have refused any aid in enforcing any rights depending upon it. McDaniel v. Orner, 91 Ark. 171; Watkins v. Curry, 103 Ark. 414; Carey v. Watkins, 97 Ark. 153; Burks v. Harris, 91 Ark. 205; Wood v. Stewart, 81 Ark. 41.

(1) The jury was warranted, under the evidence, in finding that appellee became a contestant upon the condition that coupons would be issued by the members of the clufb, only to purchasers of goods from them, or to persons making collections for them. Appellant, of course, could have prescribed any terms he saw fit for the use of the coupons which he furnished the members of the club, but fairness required that the same terms be pre-

scribed for all contestants and that the contest be carried out upon the terms which induced persons to become contestants, and that no changes should thereafter be made, to which the contestants themselves 'did not assent. The jury might have found from the evidence that appellant induced appellee to become a contestant by the representation made to her that votes would be permitted only where goods had (been sold by club members, or •collections had been made for them, and that appellee would have earned the prize had that engagement been kept, but that appellant permitted votes to be cast in sufficient numbers to defeat appellee, which were not based upon either sales or collection's.

(2) The instruction given at appellee’s request correctly submitted these issues to the jury, and the modification which the court made of appellant’s instruction, set out above, was a proper one.

Finding no prejudicial error, the judgment of the court below is affirmed.