Buckley v. Saxe

• Decision Date: 06 June 1862
• Citation: 10 Mich. 328
• Court: Michigan Supreme Court
• Parties: Henry J. Buckley v. Peter Saxe

10 Mich. 328

Henry J. Buckley v. Peter Saxe

Supreme Court of Michigan

June 6, 1862

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:

"Sometime in the month of August, 1860, the plaintiff was in the warehouse of G. O. Williams & Co., in the city of Detroit. Plaintiff offered to bet me one hundred dollars that Stephen A. Douglas would be elected President of the United States at the next ensuing presidential election. I accepted the offer, and proposed to put up the sum of one hundred dollars in the hands of N. G. Williams on such bet. Plaintiff replied that our notes were as good as the gold, and instead of putting up the gold, we each put into the hands of N. G Williams as the stakeholder our notes for the sum of one hundred dollars each; the note of each payable to the order of the other on the 1st of December then next ensuing. We considered the notes as good as money at the time. Soon after the election, and prior to December 1st, 1860, Williams delivered the notes to me, and I sent the note of plaintiff to a Mr. Skinner, of Battle Creek, who sold the same for eighty dollars, and remitted me seventy-eight dollars, which I received. I indorsed the note in blank, and without recourse, before sending it to Skinner. The note now shown me by plaintiff's attorney is the note so sold as aforesaid and for which I received the seventy-eight dollars." 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.

Martin, Ch. J. Manning and Campbell, JJ. concurred. Christiancy, J. was absent.

OPINION

Martin Ch. J.:

The statute against gaming (Comp. L., § 1582) provides that if any person shall, by playing at cards, dice, or any other...