Buckley v. Saxe
Decision Date | 06 June 1862 |
Citation | 10 Mich. 328 |
Court | Michigan Supreme Court |
Parties | Henry J. Buckley v. Peter Saxe |
Heard April 19, 1862; April 22, 1862 [Syllabus Material]
Error to Wayne Circuit.
The action was assumpsit for money had and received, originally brought before a Justice of the Peace, and appealed to the Circuit Court. On the trial in that court, the plaintiff called the defendant as a witness, who testified as follows:
Which note was then read in evidence to the jury.
The plaintiff here rested his case; and the attorney for the defendant put upon the stand the counsel for the plaintiff, who testified that the note offered in evidence was received by him from the plaintiff.
This was all of the evidence given on the trial.
The defendant requested the court to charge the jury:
First. That under the evidence, the plaintiff is not entitled to recover in this action.
Second. That if they find that plaintiff did not pay the money directly to defendant plaintiff can not recover.
Third. That a promissory note is not money within the statute against gaming, and that if the jury find from the evidence that the plaintiff bet his note with defendant, and afterwards paid the same to an indorsee of defendant, he can not recover back the money so paid in this action.
The court refused to so charge, but did charge the jury substantially as follows:
That the notes were not money, but if the jury believe from the evidence that the notes were put up by the parties in the place of money on that bet, the plaintiff might recover the amount of money which the defendant had actually received for the note.
To which charge and the refusal to charge as requested the defendant excepted.
The jury rendered a verdict for plaintiff for $ 78.
Judgment reversed, and a new trial ordered.
W. J. & J. J. Speed and D. C. Holbrook, for plaintiff in error:
Plaintiff has misconceived his action. A promissory note is not money: Mart. & Yerg., 129; 3 Met. 367. The statute only gives this action where money is lost; and as it gives a new right, and prescribes a particular remedy, that remedy must be pursued: 1 Mich. 193; 9 Mich. 23; 13 Barb. 209; 3 Comst. 9; 8 Gray 243; Sedgw. on Stat. and Const. L., 402-5; 3 Wend. 494; 2 Sanf. S. C., 438. If the wager was one of goods, assumpsit can not be maintained: 21 Me. 27. Nor can the action be maintained on the ground of Buckley having sold the note and received the money to the use of Saxe. The transaction being illegal in its inception, it can not be thus confirmed, and the money recovered: 1 Arch. N. P., 3 Am. Ed., 153 and n. 2.
Moore & Griffin, for defendant in error:
Whenever a party has received money, directly or indirectly, that belongs to another, and for which he gave no consideration, it may be recovered in this action: 1 Chit. Pl., 352; 21 Pick. 249; 3 Barb. 100; 8 Mich. 448. As between the parties, the notes in this case were void, but the statute makes them valid in the hands of an innocent indorsee. The defendant, therefore, had no interest in the note at the time of its delivery to him by the stakeholder. He could acquire none by indorsement, and the amount received must be held to have been received for the use of the plaintiff: 15 Conn. 52; 3 H. & McH., 348; 2 Denio 139.
But the notes should be treated as money in this case, and we were entitled to recover the whole $ 100: 13 East, 19. If so, the court will not reverse the judgment as it stands. It is not necessary there should have been an express agreement that the notes should be considered as money, if from the conduct of the parties it was implied: 8 Mich. 494; 6 Cow. 267, 465; 7 Cow. 662. And if they can not be treated as money, they may be held to be evidence of the amount of the money bet, and in that case, the moment the plaintiff paid his note, he was entitled to recover it of defendant.
Christiancy, J. was absent.
The statute against gaming (Comp. L., § 1582) provides that if any person shall, by playing at cards, dice, or any other...
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Webber v. Howe
...use of the plaintiffs below, for the reason that the plaintiffs below could not recover any money upon it. This case is within Buckley v. Saxe, 10 Mich. 328. submit also that the charge of the court was correct, viz.: "If you find that the order, although taken in Michigan, was filled in Oh......