G.R. No. 1724. December 11, 1905

This is an appeal from a judgment rendered by the Court of First
Instance of the city of Manila in an action brought in that court by
Alejandro Reyes against Francisco Martinez upon a promissory note in
language and figures as follows:

“Por 1,200 pesos. Pagare en virtud del presente a
los treinta dias de la fecha y a la orden del Senor Alejandro Reyes la
cantidad de mil doscientos (1,200) pesos valor recibido del mismo en
efectivo para operaciones de comercio. Manila, 1.° de Agosto de 1903.
Firmado. Francisco Martinez.”

The decision of the inferior court was in favor of the defendant,
and was based upon the theory that said promissory note had been
executed and delivered in payment of the sum of 1,200 pesos, which sum
had been lost by the defendant to the plaintiff in a game known as “burro;” that “burro” was a game of chance, and prohibited under the laws in force in these Islands.

The appellant assigns four errors committed by the trial court:

“1. That the court erred in admitting proof against
and outside of the contents of the document recognized by the party
that authorized it, not having alleged fraud, deceit, or violence in
its execution;

“2. That the said court erred in declaring
that the plaintiff won of the defendant the sum of 1,200 pesos in a
game called ‘burro;’

“3, That the court erred in declaring
that the game known as ‘burro’ is a game of luck or chance, and that a
debt is not enforcible, created by virtue of said game;

“4.
That the court erred in declaring that the payment of a sum of money
gained in a game of luck or chance is not enforcible when the debtor
has expressed his willingness to pay.”

We do not deem it necessary to examine into any of the alleged errors except the third, for the reason that if the game of “burro”
is not a game of chance, and therefore not prohibited, an action, will
lie upon a promissory note executed and delivered in payment of money
lost in such game.

The only defense presented by the defendant in the trial of the
cause in the court below was that said promissory note had been
executed and delivered in payment of a sum of money lost in a game of
chance, called “burro,” and that said game was among the prohibited games under the law. Article 1798 of the Civil Code provides that “the
law does not permit any action to claim what is won in a game of
chance, luck, or hazard; but the person who loses can not recover what
he may have voluntarily paid, unless there should have been fraud, or
should he be a minor, or incapacitated to administer his property.”
No proof was introduced in the trial of the cause to show that any
fraud had been practiced, or that the defendant was a minor, or was
incapacitated to administer his property.

A game of chance, luck, or hazard is defined under the Spanish law
as a game where “cada uno de aquellos cuyo resultado no dependa de la
habilidad o destreza de los jugadores, nino exclusivamente del acaso o
la suerte; como el del monte o el de los dados.”

According to the declaration of the defendant the game called “burro”
is “un juego de descarte en el que los jugadores pueden cambiar por
otros los naipes que se los reparten por primera vez; y habiendo
descarte inal puede ser un juego de azar.”Furthermore, the
defendant, in his declaration added “que el jugador de ‘burro’ es libre
de jugar o no y de que en el influye la habilidad.” It is therefore, evident that the game is not one of chance, luck, or hazard, because it does not depend exclusively upon chance but upon the skill of the player.

The game of “burro” is a common game among the Filipinos, and is
generally regarded as a mere parlor game, and is not a game of chance,
luck, or hazard, and is therefore not prohibited by law. Therefore a
person who executes and delivers a promissory note for money lost in
the game of “burro” is liable on such contract, unless fraud had been
practiced, or unless such person is a minor or incapacitated to
administer his property.

The judgment of the inferior court is hereby reversed, and it is the
judgment of this court that the plaintiff recover of the defendant the
sum of 1,200 pesos, with the costs of both instances. After the
expiration of twenty days let judgment be entered in accordance
herewith and the case remanded to the court of its origin for execution
thereof. So ordered.

Torres, Mapa, and Carson, JJ., concur.

Arellano, C. J., concurs in the result.