van Pelt v. Schauble

• Decision Date: 02 March 1903
• Citation: 68 N.J.L. 638,54 A. 437
• Parties: VAN PELT v. SCHAUBLE et al.
• Court: New Jersey Supreme Court

54 A. 437

68 N.J.L. 638

VAN PELT

v. SCHAUBLE et al.

Court of Errors and Appeals of New Jersey.

March 2, 1903.

(Syllabus by the Court.)

Error to Supreme Court.

Action by Henry Van Pelt against Philip Schauble and others. Judgment for plaintiff. Defendants bring error. Affirmed.

P. H. Gilhooly, for plaintiffs in error.

W. A. Cotter, for defendant in error.

DIXON, J. The plaintiff and five other persons, acting separately, deposited with a firm in Newark, of which the defendants were members, various sums of money, for the purpose of winning or losing as the price of certain stocks should rise or fall. Afterwards the other persons assigned to the plaintiff their right to the moneys so deposited and he brought this suit to recover the same. His declaration set forth only the common money counts. At the trial it appeared that the defendants had paid the money to other parties, presumably on a fall in the price of the stocks, whereupon the defendants moved for a nonsuit, because the transactions were unlawful under our statute; but that motion was overruled, and a verdict for the plaintiff was, in effect, ordered. These rulings present the substantial matters for review.

The transactions were doubtless Illegal, for our statute against gaming (Gen. St. p. 1(106, § 1) enacts that "all bets, wagers or stakes, made to depend upon any * * * unknown or contingent event, shall be unlawful." But it is because of the illegality that the money deposited remained the property of the depositor. The Legislature has the power of regulating the mode in which the title to property can be transferred, and the effect of this statute is to prevent the transfer of title by the mere delivery of money upon a wager. Consequently, when the depositary receives money upon such an unlawful agreement, he holds it without any other right or duty respecting it than the duty of returning it on demand to its lawful owner, the depositor. That duty may be enforced by action of indebitatus assumpsit for money had and received. Huncke v. Francis, 27 N.J.Law, 55, 58. If, however, there were no further legislation, this doctrine would not sustain the judgment in the present case, because of the evidence tending to show that the defendants had paid out the money in pursuance of the agreement before the plaintiff demanded its return; the general rule being that, when the agreement has been executed, the depositor cannot recover the money deposited upon a wager. But this denial does not rest upon any notion that the depositary has been able to transfer to his payee the legal title of the depositor. Evidently the act of the...