Frybarger v. Simpson

• Decision Date: 22 November 1858
• Parties: Frybarger v. Simpson
• Court: Indiana Supreme Court

11 Ind. 48

Frybarger v. Simpson

Supreme Court of Indiana

November 22, 1858

From the Fayette Circuit Court.

The judgment is reversed with costs. Cause remanded.

J. S Reid, for appellant.

B. F Claypool, N. Trusler and G. Trusler, for appellee.

OPINION

Davison, J.

The appellee, who was the plaintiff sued Frybarger to recover a certain amount of money deposited with him as a stakeholder upon a wager on the result of the state election for governor, on the 14th of October, 1856. The issues were submitted to a jury, and there was a verdict for the plaintiff, upon which the Court, having refused a new trial, rendered judgment.

The facts are substantially these: The plaintiff, on the 20th of September, 1856, deposited with the defendant, as a stakeholder, 1,000 dollars, as a wager on the result of the state election for governor, at which election Ashbel P. Willard and Oliver P. Morton were the opposing candidates, against 500 dollars then deposited with defendant as such stakeholder, by one Robert Watt. When the several sums were thus deposited, the plaintiff and Watt were both present, and each in the presence of each other directed the defendant, if Willard should be elected, to pay the entire amount, 1,500 dollars, to Watt, but in case Morton was elected, he, the defendant, was directed to pay the same to the plaintiff. After the election had occurred, and, as the result, it had been determined and become known that Willard had been elected, viz., on the 17th of October, 1856, the plaintiff stated to the defendant that he wished him to wait, and not pay over the money, until he, plaintiff, could see Watt, as he wanted him to take, in lieu of the 1,000 dollars, some old judgments which were good, but slow. This was understood by the defendant to be a request, merely, and not a direction. After this, on the 20th of October, Watt called on the defendant, who informed him, Watt, of the plaintiff's request, to which Watt replied that he had waited a reasonable time, that he was unwilling to accept judgments in lieu of the 1,000 dollars, or any other arrangement different from the original terms of the wager, and thereupon he demanded payment of the whole amount deposited. And the defendant, being satisfied as to the result of the election, paid over to the said Watt the entire sum of 1,500 dollars.

It was proved that, after the money had been so paid over, and about the first of November the plaintiff directed the defendant not to pay over the 1,000 dollars, and that afterwards, and before the commencement of this suit, he demanded the same of the defendant.

The evidence being closed, the Court, of its own motion, gave the following instruction: "If the jury believe the evidence, they must find for the plaintiff the amount by him deposited, with interest from the time he demanded it of the defendant."

Upon the subject of the inquiry involved in this instruction, we have no statute. Hence, its correctness must be tested by common-law rule. And in accordance with that rule, it is well settled that wagers upon the result of an...