Martin v. Richardson

• Decision Date: 18 March 1893
• Citation: 94 Ky. 183,21 S.W. 1039
• Parties: MARTIN v. RICHARDSON.
• Court: Kentucky Court of Appeals

21 S.W. 1039

94 Ky. 183

MARTIN v. RICHARDSON.

Court of Appeals of Kentucky.

March 18, 1893

Appeal from circuit court, Union county.

To be officially reported.

Action by R. E. Richardson against J. C. Martin for money obtained by defendant on a lottery ticket owned by plaintiff. From a judgment in plaintiff's favor, defendant appeals. Affirmed.

Adair &amp Morton, for appellant.

Edward W. Hines, William Lindsay, and Allen & Hughes, for appellee.

HAZELRIGG J.

Richardson the appellee, was the owner and holder by purchase from Martin, the appellant, of four tickets in the Little Louisiana Lottery concern. Among them was ticket No. 93,262. The drawing was fixed for January 14, 1890, and on the 15th or 16th of that month Martin informed Richardson that it had been postponed. He then induced him to surrender his four tickets, and accept one in the Big Louisiana Lottery, saying that he had let him have these four tickets by mistake; that they belonged to another person, who was demanding them. As a matter of fact, the drawing had not been postponed, and the ticket numbered as above stated had drawn a prize of $3,750. These facts were known to the appellant, and not to the appellee. Thereafter the appellant presented the ticket to the lottery concern, and received the prize. Refusing to account to the appellee for it, he was sued, and in the lower court, after the verdict of a jury, judgment for the sum of $3,750 was rendered against him, and from which he appeals. He does not bring up the evidence, and hence the only question is as to the sufficiency of the pleadings to support the verdict and judgment. The action was simply one for money had and received. The defendant collected that which belonged to the plaintiff, and the law implied a contract to pay it over to him. The contract which the law raised between them was not founded on the purchase or sale of a lottery ticket but on the obligation to refund the money which had been procured and received by falsehood and fraud. It is true the plaintiff alleges that he bought the ticket from the defendant, and that it was one in the Little Louisiana Lottery; but he does not state where he bought it, and there is nothing in the petition to show that the lottery was unauthorized by law to transact such business; hence the demurrer was properly overruled.

The answer denied that the plaintiff had ever owned or held the ticket numbered 93,262, or that the defendant ever delivered said ticket to the plaintiff, or that such ticket was obtained by defendant from the plaintiff in any way, or that he made the representations complained of. Then follows a statement in the answer of how the plaintiff and defendant had exchanged a dollar ticket in the Big Louisiana Lottery for four 25-cent tickets in the Little Louisiana Lottery, and he disclaims any knowledge at the time of any of the tickets having drawn prizes. He avers that the Little Louisiana Lottery is located and operated in California, and is not licensed or authorized by the laws of California or other state to carry on that business, nor is either of said concerns authorized or licensed to carry on such business, or sell or dispose of tickets or prizes, by any law or statute of this state; that both plaintiff and defendant resided in this state at the time of the purchase by plaintiff of the tickets, and at the time of their procurement and exchange as aforesaid, and all said acts and transactions were had and done in Union county, Ky. It will be observed that it is nowhere alleged that plaintiff bought ticket No. 93,262 in Kentucky, or that he exchanged that particular ticket with the defendant in Kentucky. The transaction set up by the defendant in his answer as having occurred in Union county, Ky. necessarily excluded those with reference to this particular ticket, because the defendant expressly and unreservedly denied that plaintiff ever held this ticket, or that he ever obtained it from him in any way. Moreover, the plaintiff, by reply, denied that the Little Louisiana Lottery was not licensed or authorized by law to carry on such business; and therefore, as every...