86 Miss. 406 | Miss. | 1905
Lead Opinion
delivered the opinion of the court.
This was a suit by appellee (plaintiff below) to recover of appellants (defendants below) a sum of money paid by mistake. Appellants pleaded the general issue, and gave notice that they would show on the trial that the transaction in issue was wholly based on gambling and wagering contracts. "Upon the trial plaintiff testified that defendants’ attention had been called to the payment by mistake, and that they promised to fix it up. Defendants, in their testimony, did not deny this, and made no claim that the money had not been paid by mistake. Defendant offered to show that commissions credited by plaintiff to himself on account of various gambling contracts placed by him for defendants amounted to more than the sum in issue, which, on objection, was not allowed. Peremptory instruction for plaintiff, and verdict and judgment accordingly.
The contention of anpellants is that the dealings in question were based upon gambling contracts, and that fheir account had been charged with commissions claimed by appellee for negotiating his gambling contracts, which amounted in the aggre
Affirmed.
Concurrence Opinion
delivered the following opinion specially concurring:
If the plaintiff had to resort to a contract, executed or exri eeutory, growing out of an illegal business, to make out his", case, then the defendant could successfully have resisted the claim. But the illegal business had been settled, and a new and independent element supervened — the payment by mere mistake of the $1,000 — and the defendants admit that it was paid by mistake. They do not deny this. No resort was necessary to the bookkeeping to show it. This suit is not on the illegal contract. It is simply to recover the $1,000 so paid by mistake, a matter wholly apart from the illegal dealing.
