APPENDIX C.
Since the observations on page 34 were written, the case of Carlill v. The Smoke Ball Company (see daily papers, 5th July, 1892) has been decided by Hawkins, J. The case can only be very shortly noticed here. The contract was that the Defendants would, if any person after having used their smoke ball for a given time should contract an attack of influenza, pay such persons £100. The Defendants contended that this was a wager contract. If tested by the light of the criteria suggested at page 34, it would seem to be far removed from a wager. The consideration received by the Defendants was the exploitation and experimenting by the Plaintiff of their smoke ball; and it was only after that had become an accomplished fact—a certainty—that they came under their conditional liability to the Plaintiffs. The learned Judge enters into a discussion of the essentials of a wager contract, on which the following observations may with deference be suggested:—(1) The backing or expressing of an opinion is not essential, as suggested at page 34. The man who is party to a wager selects a chance: an unknown or uncertain event in which he is to receive payment.
(2) A wager involves the selection of more than one event, otherwise the essential of mutuality is lost. Each party selects the event, positive or negative, on which he is to be paid by the other. A backs a horse with B; B of course may select the negative event that A’s horse will not win, or what is the ordinary contract of “the layer,” he merely backs the field, i.e., all the other horses but A’s horse. It is quite possible in the latter case that both events may happen, e.g., A’s horse may run a dead heat with one of the field. The rule here is that each party whose horse runs a dead heat wins half his stake, or in other words the money is put together and evenly divided. If A backed the horse at evens the bet is practically off; if he backed it at 5 to 1 he wins £2. A walk over of course counts as a win to the party whose horse walks over.