Wolpert v. Knight, 4108

• Decision Date: 24 October 1958
• Docket Number: No. 4108,4108
• Citation: 330 P.2d 1023,74 Nev. 322
• Parties: Eugene B. WOLPERT, Appellant, v. Ralph KNIGHT, Respondent.
• Court: Nevada Supreme Court

Page 1023

330 P.2d 1023

74 Nev. 322

Eugene B. WOLPERT, Appellant, v. Ralph KNIGHT, Respondent.

No. 4108.

Supreme Court of Nevada.

Oct. 24, 1958.

Jon R. Collins, Ely, for appellant.

E. R. Miller, Jr., Ely, for respondent.

BADT, Chief Justice.

Knight recovered a judgment for $2,000 against Wolpert on his complaint based on Wolpert's check for $2,500 issued and delivered by Wolpert to Knight to take up five earlier $500 checks. Wolpert pleaded as a special defense that the check was given in consideration of a gambling debt. The court's finding against this contention is amply supported by the record, which, without contradiction, shows that on each of four occasions at which Knight cashed Wolpert's $500 check, Wolpert was not indebted to Knight. A fifth $500 check was executed by Wolpert at the gambling table and delivered to the dealer for which the dealer gave Wolpert $500 in chips which Wolpert proceeded to play at the table.

The contention presented on Wolpert's appeal from the judgment is that the $2,500 check, as well as all of the earlier $500 checks taken up thereby, were nullities by reason of the provision that any such bill, note or security given 'for the reimbursing or repaying any money knowingly lent or advanced at the time and place of such play, to any person or persons so gaming or betting as aforesaid, or that shall, during such play, so play or bet, shall be utterly void, frustrate and of none effect * * *.' Statute of Anne, Section 1, adopted into the law of this state as part of the common law of England. West Indies v. First National Bank, 67 Nev. 13, 214 P.2d 144. Our conclusion is that the contention is not well founded, and we turn to the record to determine the circumstances under which each check was cashed.

Respondent operated the Townclub, a cafe, bar and casino, in Ely. On four different occasions, over a period of three days, appellant went to the cashier's desk at the Townclub and asked if they would cash his check. On each occasion he did so. Knight was asked on cross examination:

'Q. Isn't it true, Mr. Knight, when Mr. Wolpert would gamble and come back, or he would build up a debt, then you would give him more money? A. That is not true.

'Q. Now the money he got from you for the checks, he would use it for gambling? A. No, sir, he would not. That is not a true statement. I say Mr. Wolpert used part of it for gambling but how much I don't know. * * * When he got money from me, at times he would go to the bar and drink or buy drinks at the bar for others, then he would leave and I presume go to the corner for awhile, then come back. * * * 'Q. Isn't it true you gave him money so he would gamble? A. I did not, that is not true.

'Q. He did gamble? A. That is right, I saw him gamble but I did not know he would gamble, I thought there was a possibility he would, but I had no way to control that he would.'

On each occasion when Wolpert asked Knight to cash his check he owed Knight no money at all. On the last occasion Wolpert bought $500 in chips. It was for this item of $500 that the court denied him a judgment. Knight further testified:

'Q. What did he do with the cash you gave him? A. Mr. Wolpert did several things with the money, he bought drinks for the house, gave money to his friends, to the best of my knowledge he spent money on girls, then he left my place of business. * * * He gave money to his foreman, Fred Harkreader, and to Bill Miller. I would say between $75 and $100 to each. I saw him put his hands in his pockets and I saw him pull out money, how much I don't know. I saw him give money to a girl, and what he did with the money outside of my establishment, I don't know, but I assume that he spent the money because he came back later and cashed another check. On one, two or three occasions he went to the [gambling] table. On several occasions he had discussions with his friends before going back to the tables. I have no way of telling whether he won or lost money in my place of business. Part of the chips [for which the last $500 check was given] he gave to Bill Miller and Fred Harkreader, cashing the chips for silver....