Summary
In Dumas the court apparently felt that Jorman and Barker were distinguishable; but since we feel that any distinction is at best questionable, we have reexamined these cases in the light of the unbroken line of "closed participation" cases in our own courts, beginning with Meyer v. State, infra, as well as secondary authorities and scores of opinions from other jurisdictions dealing with "flexible participation" lotteries and gift enterprises.
Summary of this case from Boyd v. Piggly Wiggly Southern, Inc.Opinion
36115.
DECIDED MARCH 14, 1956.
Action for damages. Before Judge Hicks. Floyd Superior Court. January 5, 1956.
W. B. Mitchell, for plaintiff in error.
Covington Kilpatrick, Bryan M. Story, contra.
The trial court properly sustained the general demurrer and dismissed the petition.
DECIDED MARCH 14, 1956.
Jesse Dumas brought suit against T. L. Todd and Stroull Dempsey, d/b/a J. L. Todd Auction Company. To the petition the defendants filed a general demurrer which was sustained by the trial court. It is on the sustaining of the general demurrer that the case is here for review.
The petition alleged substantially that the defendants are a firm that sell property at auction; that in order to get crowds to an auction sale, they do extensive advertising; that on occasions, including the one now the subject of the suit here, they advertise that some person will receive things of value at the sale, by numbers being drawn from a container holding a stub with the person's name on the ticket; that in the instant case the thing of value which they were to give away was a Ford automobile; that it was essential for the person whose name was drawn to be present; that the plaintiff had several tickets and wrote his name on them and deposited them in the container provided by the defendants at the drawing; that his name was drawn; that the plaintiff was present; that without prior notice it was announced that it was necessary for the plaintiff to produce the stub to match the ticket; that when the plaintiff could not produce the stub the defendants refused to give the plaintiff the automobile; that the value of the automobile was $2,200 and the plaintiff prays for recovery of that amount.
The defendants filed general and special demurrers to the petition. The trial court sustained the general demurrer and did not pass upon the special demurrers. The question before this court is whether or not the trial court erred in sustaining the general demurrer.
1. Since there was no consideration shown, the giving of an automobile under the circumstances described herein does not come within the scope of a lottery device. See Equitable Loan Security Co. v. Waring, 117 Ga. 599 ( 44 S.E. 320, 62 L.R.A. 93, 97 Am. St. R. 177); Barker v. State, 56 Ga. App. 705 ( 193 S.E. 605), and Jorman v. State, 54 Ga. App. 738 ( 188 S.E. 925). Nor is a contractual relationship shown, because of lack of consideration. Moore v. Logan-Long Co., 40 Ga. App. 259 ( 149 S.E. 321) involved the giving away of roofing by a building materials firm. In that case the allegations of the petition showed that the defendant engaged in certain advertising projected towards acquainting the building trade with the defendant's roofing material. It was alleged that the defendant announced that 25 squares of roofing would be given away; that the plaintiff received a card which he filled out and returned to the defendant; that the plaintiff was announced as the winner; that the time for delivery was changed by agreement between all parties concerned; that the roofing was not delivered when delivery was requested by the winner. The defendant filed a general demurrer to the petition, which was sustained. The Court of Appeals in affirming the judgment of the trial court said: "The alleged contract shows that a prize was to be awarded; that it constituted an offer to make a gift and was a naked promise without valid consideration." The fact that the Ford in the instant case was offered to encourage people to attend the auction does not constitute consideration, — it shows motive, but not legal consideration. Brosseau v. Jacob's Pharmacy Co., 147 Ga. 185 ( 95 S.E. 293). In Martin v. Deaton, 44 Ga. App. 528 ( 162 S.E. 399) this court said: "Motive and consideration are not interchangeable terms, since the motive for a promise does not supply the element of consideration."
We think it was necessary, under the pleadings in the instant case, for the plaintiff to have been required to produce the stub for identification purposes. Even had there been a legal contract, (and we have herein ruled that this is not true), it would have been necessary for the plaintiff to have produced his stub to match the ticket. We can visualize a situation of the same name in a large crowd, each unknown to the parties involved in a "give-away" promotion scheme, resulting in it being absolutely essential that the stub should be presented for identification purposes. We do not deem it necessary to set out other reasons why a presentation of a stub should be required.
The trial court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. Townsend and Carlisle, JJ., concur.