Wise

It is alleged in the complaint that plaintiff and A. B. Spreekels laid a wager of $500 on the result of a horserace to be run on the Stockton course between September 17 and 22,1894, each depositing with the defendant his stake of $500, under an agreement that defendant should pay the stakes ($1,000) to the winner; that before the race was run, and before it was or could have been known or determined whether plaintiff had won or lost the stakes, he repudiated the wager and served written notice of such repudiation upon Spreekels and upon defendant, and, two days thereafter, demanded of defendant his said stake of $500; but that defendant has failed and refused to return to him said sum of $500 or any part thereof. ■

In his answer defendant admits the wager, and that plaintiff and Spreekels each deposited with him a stake of $500 pursuant to a written agreement between them, which was also deposited with him, of which the following is a copy:

That thereafter the following further written agreement was executed between plaintiff and Spreckels:

That at the time and place thus appointed the said “Jennie June” failed to appear, although requested by the judges of the race so to do,…