The tenth plea avers that the suit is to recover the purchase price of a gambling device sold by the plaintiff to the defendants, and shows that the plaintiff was concerned with defendants in setting up and operating the device, and by arrangement between them, the plaintiff was to participate in the proceeds of the gambling operation, and was not subject to any of the stated grounds of demurrer. — Kuhl v. GallyUniversal Press Co., 123 Ala. 456, 26 So. 535, 82 Am. St. Rep. 135; Bickel v. Sheets, 24 Ind. 1; Rose v. Mitchell,6 Colo. 102, 45 Am. Rep. 520; Hill v. Spear, 50 N.H. 253, 9 Am.Rep. 205; Skiff v. Johnson, 57 N.H. 475; 12 R. C. L. 750, § 55; 6 R. C. L. 776, § 181.
The evidence offered by the plaintiff to sustain his cause of action clearly shows that it was contemplated that the punch board was to be operated according to the directions prepared by the plaintiff, and that he was, under certain conditions, to receive 80 per cent. of the proceeds arising from the operation of the board; and the evidence clearly shows that the contract between the parties was made in furtherance of a gambling transaction, in which the plaintiff was a participant. — 6 R. C. L. 776, § 181, supra. There was evidence tending to support the tenth plea, and the affirmative charge was properly refused.
(3) Charge 2 refused to the plaintiff was calculated to impress the jury that it was necessary for the plaintiff to be present and physically ("actually") participate in the operation of the board, and was refused without error. The application is overruled.
Application overruled.