Opinion
No. 13,922.
Decided April 12, 1937. Rehearing denied May 3, 1937.
Action in replevin to secure possession of an automobile. Judgment for defendant.
Affirmed.
1. GIFTS — Lottery — Contracts. In a replevin suit plaintiff claimed title to the property in controversy by virtue of "drawing a lucky number" at defendant's fair. On consideration it is held that such a proceeding could in no way involve the essential elements of a legal contract.
2. Delivery. There can be no gift without effectual delivery.
Error to the District Court of the City and County of Denver, Hon. Robert W. Steele, Judge.
Mr. ROY O. SAMPSON, for plaintiff in error.
Mr. STEVENS PARK KINNEY, for defendant in error.
THE plaintiff in error Helen Slagle, plaintiff below, sued to replevy an automobile from a corporation called the Construction Progress Exposition. On motion a verdict was directed in favor of the defendant. Judgment was accordingly entered. Plaintiff now seeks a reversal.
The defendant corporation pleaded its ownership of the automobile in question. The plaintiff's replication did not plead the method by which she claims to have obtained the title of the car. Neither do the assignments of error reveal the basis of her claim. It appears from the record, however, that she relies upon the contention that the defendant made a gift to her of the automobile. It is immaterial that the gift is asserted to have been effected through the drawing of a "lucky number" from among all the numbers received in connection with admission tickets by the persons visiting the defendant's "fair," where numerous merchants exhibited their wares.
[1, 2] No contract right could arise out of the situation thus presented, lacking as it does all the essential elements of a legal contract. The only question therefore is whether there was a complete gift. According to the uncontradicted evidence, the automobile was not to be delivered until the close of the fair. It is admitted that the fair closed without any delivery being made to Mrs. Slagle. There was no gift, for a gift presupposes an effectual delivery.
Judgment affirmed.
MR. CHIEF JUSTICE BURKE and MR. JUSTICE YOUNG concur.