Ah Doon v. Smith

CourtOregon Supreme Court
Writing for the CourtBEAN, J.
Citation25 Or. 89,34 P. 1093
Decision Date11 December 1893
PartiesAH DOON v. SMITH.

34 P. 1093

25 Or. 89

AH DOON
v.
SMITH.

Supreme Court of Oregon

December 11, 1893


Appeal from circuit court, Crook county; W.L. Bradshaw, Judge.

Action by Ah Doon against C.S. Smith for money had and received. From a judgment of dismissal, plaintiff appeals. Affirmed.

[25 Or. 91] J.F. Moore, for appellant.

Geo. W. Barnes and M.E. Brink, for respondent.

BEAN, J.

[25 Or. 90] This is an action to recover the sum of $740, alleged to have been loaned by plaintiff to the defendant, and also the sum of $145, alleged to have been received by the defendant for the use and benefit of the plaintiff. The complaint alleges, in substance, that on or about the 16th day of October, 1892, the plaintiff, at the instance and request of defendant, furnished, loaned, and delivered to him the sum of $740 in cash, which the defendant promised and agreed to repay, but has neglected and failed so to do; and, for a further and separate cause of action, that on the same day the defendant received and applied to his own use and benefit money belonging to the plaintiff in the further sum of $145, which he has refused and neglected to pay to the plaintiff. The answer specifically denies all the material allegations of the complaint.

At the trial the plaintiff, testifying in his own behalf, stated in general terms that at the time alleged he furnished and delivered to the defendant $740 in coin, and that defendant took and appropriated to his own use $145 in money belonging to the plaintiff, and that of neither of said amounts, or any part thereof, has ever been repaid to him. Upon the cross-examination of plaintiff and his witnesses the defendant was permitted to show by them, over plaintiff's objection and exception, that at the time the money was delivered to defendant by plaintiff, and as part of the same transaction, they were engaged in unlawful gaming; that the money was to be used by defendant in the game, and was so used; and that the $145 taken by defendant was money lost by him in such game, and taken [25 Or. 91] from the gambling table while the game was in progress. At the close of the testimony for plaintiff, the defendant moved for a dismissal of the action on the ground that the contract sued upon was against public policy and good morals, and one which a court of justice should not enforce. This motion was sustained, and plaintiff appeals.

Plaintiff did not, at the hearing, controvert the position taken by defendant, that if the money sued for was delivered to him to be used in gaming, under the circumstances disclosed, it cannot be recovered back in a court of justice. McKinnell v. Robinson, 3 Mees & W. 434; Badgley v. Beale, 3 Watts, 263. But he insists that such a defense is new matter, and must be pleaded before it can be proved. As a rule of pleading this is undoubtedly correct. A defendant who has not pleaded the illegality of the contract sued on has no right to offer evidence of such illegality, and it is said he cannot avail himself of it when disclosed by the plaintiff's case, if the court does not refuse to entertain the action. Cardozo v. Swift, 113 Mass. 250. But no waiver by the defendant, or neglect to plead such a defense, can oblige the court to entertain an action founded upon an illegal or immoral...

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46 practice notes
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • January 20, 1899
    ...portion. (State v. Adams, 108 Mo. 208, 18 S.W. 1000; Murray v. Great Western Ins. Co., 72 Hun, 282, 25 N.Y.S. 414; Ah Doon v. Smith, 25 Or. 89, 34 P. 1093; Sayres v. Allen, 25 Or. 211, 35 P. 254; Currier v. Robinson, 61 Vt. 196, 18 A. 147; Weadock v. Kennedy, 80 Wis. 449, 50 N.W. 393; Peopl......
  • Grover v. Zook
    • United States
    • United States State Supreme Court of Washington
    • November 24, 1906
    ...156 Mass. 211, 30 N.E. 818, 15 L. R. A. 834, 32 Am. St. Rep. 446; Armstrong v. Toler, 11 Wheat. (U. S.) 258, 6 L.Ed. 468; Ah Doon v. Smith, 25 Or. 89, 34 P. 1093; Tatum v. Kelley, 25 Ark. 209, 94 Am. Dec. 717; Woodworth v. Bennett, 43 N.Y. 273, 3 Am. Rep. 706; Gaylord v. Soragen, 32 Vt. 110......
  • State v. Osborne
    • United States
    • Supreme Court of Oregon
    • July 20, 1909
    ...hearsay testimony taken from the jury. The testimony elicited on cross-examination is the evidence of the adverse party. Ah Doon v. Smith, 25 Or. 89, 93, 34 P. 1093. The questions asked the witness were clearly within the defendant's rights, and that the hearsay responses were elicited on c......
  • Swank v. Moisan
    • United States
    • Supreme Court of Oregon
    • July 24, 1917
    ...Rep. 701. The contract was ineffectual rather than illegal, and the case, therefore, falls without the rule announced in Ah Doon v. Smith, 25 Or. 89, 34 P. 1093; Pacific Live Stock Co. v. Gentry, 38 Or. 275, 290, 61 P. 422, 65 P. 597; Cullison v. Downing, 42 Or. 377, 383, 71 P. 70; Jackson ......
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46 cases
  • State v. Webb
    • United States
    • Idaho Supreme Court
    • January 20, 1899
    ...portion. (State v. Adams, 108 Mo. 208, 18 S.W. 1000; Murray v. Great Western Ins. Co., 72 Hun, 282, 25 N.Y.S. 414; Ah Doon v. Smith, 25 Or. 89, 34 P. 1093; Sayres v. Allen, 25 Or. 211, 35 P. 254; Currier v. Robinson, 61 Vt. 196, 18 A. 147; Weadock v. Kennedy, 80 Wis. 449, 50 N.W. 393; Peopl......
  • Grover v. Zook
    • United States
    • United States State Supreme Court of Washington
    • November 24, 1906
    ...156 Mass. 211, 30 N.E. 818, 15 L. R. A. 834, 32 Am. St. Rep. 446; Armstrong v. Toler, 11 Wheat. (U. S.) 258, 6 L.Ed. 468; Ah Doon v. Smith, 25 Or. 89, 34 P. 1093; Tatum v. Kelley, 25 Ark. 209, 94 Am. Dec. 717; Woodworth v. Bennett, 43 N.Y. 273, 3 Am. Rep. 706; Gaylord v. Soragen, 32 Vt. 110......
  • State v. Osborne
    • United States
    • Supreme Court of Oregon
    • July 20, 1909
    ...hearsay testimony taken from the jury. The testimony elicited on cross-examination is the evidence of the adverse party. Ah Doon v. Smith, 25 Or. 89, 93, 34 P. 1093. The questions asked the witness were clearly within the defendant's rights, and that the hearsay responses were elicited on c......
  • Swank v. Moisan
    • United States
    • Supreme Court of Oregon
    • July 24, 1917
    ...Rep. 701. The contract was ineffectual rather than illegal, and the case, therefore, falls without the rule announced in Ah Doon v. Smith, 25 Or. 89, 34 P. 1093; Pacific Live Stock Co. v. Gentry, 38 Or. 275, 290, 61 P. 422, 65 P. 597; Cullison v. Downing, 42 Or. 377, 383, 71 P. 70; Jackson ......
  • Request a trial to view additional results

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