Townes v. Cheney

Pearce, J., delivered the opinion of the Court. This case originated .in a non-resident attachment brought by the appellee against the appellant, the alleged evidence of indebtedness, being the following paper, annexed to the affidavit. ■ “$500. Washington, D. C., March 30th, ’08. “Ninety days after date I promise to pay to the order of John Cheney the sum of five hundred dollars for value received in a certain contract on Keating transferred to me under terms of special contract filed with the Jockey Club this day. “Wm. T. Townes." The short note contained the usual common counts and a special count “For money due to the plaintiff by the defendant on the note annexed to this declaration, for the sum of $500.00 due June 30, 1908, and not paid by the maker Wm.

T. Townes as per the tenor thereof.” An amended account was afterwards filed, with leave of the Court, as follows: “Wm. T. Townes to John Cheney, Hr. “To amount due on paper writing March 30th, 1908, being-drawn to the order of John Cheney by Wm. T. Townes, $500.00. “To amount due for first call on services of Jockey William Keating from March 30th, 1908 to July 1st, 1908, $500.00. “This last item being an alternative item of the first item herein set forth. “Total amount due, $500.00, together with interest from July 1st, 1908.” The attachment was dissolved by bond and the summons case came up for trial on the usual general issue pleas and a special plea that the paper writing was delivered in escrow and upon conditions which had not been complied with. ³⁶⁴ The plaintiff was the owner of and was interested in race horses and horse racing, and the defendant, who resided in Virginia, had a stock farm where he raised horses which he also employed in racing, and in March 1908, each of them had some horses on the track at Bennings, near Washington. Mr. Cheney then had in his employment as a jockey, Wm.

J. Keating, a boy then fifteen years of age, who was regularly apprenticed to him by an indenture dated March 27th, 1907, between Cheney and the boy, and the boy’s father Michael Keating. This apprenticeship was for three years renewable for a further period’ of two years at the pleasure of said Cheney. Keating was to receive $15 per month for the first year, $20 per month for the second year, and $25 per month for the third year and was to be instructed in the art or trade of a jockey, but was not to ride for any other stable than that of John Cheney during his apprenticeship, except upon engagements of said Cheney and under his direction. Cheney’s horses became sick at Bennings, and for that reason he testified he wished “to sell” Keating, and on March 30th, 1908, he entered into a written contract with Mr. Townes purporting to transfer to him the unexpired term of said apprenticeship, and any renewal made under the terms of the apprenticeship.

The language of the contract was that Cheney “sells unto the party of the second part, first call on said boy’s services during the term of the (original) contract yet unexpired and' during any renewal thereof,” * * *. It is agreed that the party of the first part shall have second call on said boy’s services by giving reasonable notice of his desire to use him, said Townes not requiring his services for any such race. The original contract with said boy referred to in this instrument is now on file with the Jockey Club.” The note which was the .basis of the attachment was executed at the same time, and Mr. Cheney testified that it was ³⁶⁵ then, put in the hands of Mr. Osborne, a mutual friend of tbe parties, to whom Mr. Cheney then said: “If Mr. Keating objects, or anything of that sort of course it won’t go, and so he gave the note to Mr. Osborne and if all right he will send the note to you, and if it is not he will tear it up, and that this was mutually agreed to.” Mr. Townes testified that “the note was delivered to Mr. Osborne to hold until approval of the Jockey Club. * * * The note was for 90 days and was not to be effective until the'boy’s parents consented to it and the Jiockey Club approved. Rule 153 of the Jockey Club provided that before the contract becomes effective it must be filed with the Jockey Club, and must be approved by the Stewards, * * * and the club will not approve a transfer unless the parents consent.” The contract of transfer was filed with the Jockey Club April 2nd, 1908, and its receipt acknowledged' in due course, but on April 22, 1908, the Secretary of the club wrote Mr. Townes informing him that he had returned it to Mr. Cheney, “as it had not been approved by the boy and the boy’s