Gulf Collateral, Inc. v. Johnston, 5242

• Decision Date: 03 May 1973
• Docket Number: No. 5242,5242
• Citation: 496 S.W.2d 123
• Parties: GULF COLLATERAL, INC., Appellant, v. Roy R. JOHNSTON, Appellee.
• Court: Texas Court of Appeals

Page 123

496 S.W.2d 123

GULF COLLATERAL, INC., Appellant, v. Roy R. JOHNSTON, Appellee.

No. 5242.

Court of Civil Appeals of Texas,

Waco.

May 3, 1973.

Rehearing Denied June 14, 1973.

Franklin R. Navarro, Houston, for appellant.

Paul P. Regnier, Houston, for appellee.

OPINION

McDONALD, Chief Justice.

This is an appeal by plaintiff Gulf Collateral from take nothing judgment in suit against defendant Johnston on 10 checks for $131.88 each.

Plaintiff sued defendant alleging that Desert Inn Hotel in Las Vegas, Nevada assigned it 3 checks of $500. dated on January 8 or 9, 1969, which Desert Inn cashed for defendant, and which were returned by defendant's bank marked 'Insufficient Funds'; that plaintiff 'entered into a compromise agreement' with defendant whereby defendant executed 12 checks for $131.88 each dated one month apart, that 2 of these checks were paid but that 10 were not paid due to 'payment stopped'. Plaintiff prayed judgment for $1250.

Defendant answered that the amount sought by plaintiff is based entirely and exclusively on a gambling debt and is illegal and void, that the funds involved were lost by defendant at Desert Inn while gambling with employees of Desert Inn.

Trial was before the court without a jury, which rendered judgment that plaintiff take nothing.

Plaintiff appeals on 2 points:

1) The trial court erred in granting judgment for defendant in that the judgment rendered was contrary to the law and evidence; and judgment should have been rendered for plaintiff.

2) The trial court erred in granting judgment for defendant as the 'tainted transaction' had been completed and the new contracts (the unpaid checks) were not vitiated by the taint, if any, of the original transaction.

Defendant Johnston was gambling at the Desert Inn in Las Vegas, Nevada, lost all of his money and went to 'the window' and asked if they would cash his check. They cashed defendant's check for $500.; defendant turned around and bought $500. worth of chips and walked to the dice table and started back gambling and lost. He cashed 2 additional checks for $500. and returned to gambling and lost this money. The checks were not paid by defendant's bank to Desert Inn which assigned them to plaintiff.

Plaintiff's attorney contacted defendant and had prepared the 10 checks for $131.88 sued on and defendant signed them. The checks were made payable to plaintiff's attorney who assigned them to plaintiff. The checks payable to plaintiff's attorney and signed by defendant are the same sums of money defendant lost at the gambling table at Desert Inn.

After defendant cashed the 3 checks for $500. at Desert Inn he could have used the funds for...