114 P. 758 | Utah | 1911
Lead Opinion
Respondent brought this action against the appellants to recover the sum of two thousand dollars as for money had and received by them for her use and benefit. The material allegations in the complaint, in substance, are: That the appellants were conducting a gambling house in Ogden City, Utah; that respondent on the 15th day of April, 1909, was the owner of two thousand dollars in cash; that between the date aforesaid and the 13th day of May, 1909, respondent’s husband took said money from her possession without her consent, and, contrary to her directions or instructions, he lost the same by gambling in the gambling house of appellants, and that they by that means and in that manner obtained and received said two thousand dollars “for the use and benefit of the plaintiff herein;” that before bringing the action respondent demanded said money from appellants,, which they refused to return to her. The answer, in legal effect, amounts to a general denial. A trial to a jury resulted in a verdict and judgment in favor of respondent for the sum of five hundred dollars. The appellants present the record to this court on appeal.
The principal error assigned is that the verdict is not supported by sufficient evidence. The controlling facts developed at the trial are substantially as follows: Respondent on the 11th day of April, 1909, married one Erank Boroughs. Respondent and her husband prior to their marriage came from the state of North Carolina and were married at Ogden City, Utah. After respondent came to Ogden, she received about five hundred dollars from home, a part of which she received as the proceeds of the sale of property which she had sold, and the remainder was a gift. Fifteen hundred dollars she says her husband gave her about three
While there is considerable evidence on behalf of appellants which is flatly contradictory of respondent’s statements, yet it is not deemed necessary to notice
The principal assignment of error insisted on by appellants, stated in counsel’s own language, is: “That the evidence is insufficient to justify the verdict, and that it is
In the absence of a statute, probably the only right of action respondent had was to sue appellants as she did, namely, for money had and received by them for her use and benefit. To sustain this action, however, a plaintff must show that “there has been an actual receipt of money by the defendant or something equivalent to it.” (Abbott’s
The law upon this subject is clearly and tersely stated by Mr. Chief Justice Bell in the case of Corser v. Paul, 41 N. H., at page 29, 77 Am. Dec., at page 756, in the follow-
Tbe decision in tbe ease of Mattocks v. Lyman, 16 Vt. 119, is to tbe same effect. While lack of space prevents us from quoting all that was said between respondent and Peterson at tbe two interviews, yet we think we have quoted enough to show that there arose neither a natural nor a reasonable inference from what was said that Peterson admitted by implication even that respondent’s husband either gambled or lost any money in bis gambling bouse which was received by him or by any of bis agents or servants. In order to make tbe admission worth anything as evidence, that is just what would have to follow from Peterson’s silence. Moreover, it is- manifest from the whole tenor of respondent’s statement to Peterson that she neither knew nor pretended to know tbe truth with regard to when or bow much money, if any, her husband had lost in appellants’ gambling bouse. She merely assumed that her husband bad gambled there, and therefore bad lost tbe money. Nor was tbe statement in tbe nature of an accusation or interrogation, but was essentially speculative, in that respondent merely assumed
In this case there is some evidence upon which a jury could base a finding that respondent’s husband had lost one hundred and sixty dollars of her money in appellants’ gambling house. Prom the evidence (and especially because no explanation nor denial was made that the husband
Ordinarily, in view that this is a law case, we should reverse the judgment unconditionally. In view, however, that it is practically certain that appellants have no defense as against the amount aforesaid, and in view
It is therefore ordered that, in case respondent shall file with the clerk of this court within twenty days after notice of this decision her consent to remit from the judgment all except the sum of one hundred and sixty dollars with legal interest thereon, -then the judgment will be affirmed without costs to either party; otherwise the judgment will be reversed, with costs to appellants.
Concurrence Opinion
(concurring).
I think the evidence conclusively shows that during the months of April and May, 1909, defendants were the proprietors of and conducted a gambling house in Ogden, Utah, known as the St. Louis Gambling Hall. In fact, it is admitted that defendants" were following gambling as a business or profession at that time. And I think there is evidence from which the jury might well find: (1) That Frank Boroughs, plaintiff’s husband, on May 12, 1909, took five hundred dollars of plaintiff’s money from her possession, and on May 13, 1909, gambled and lost one hundred and sixty dollars of the five hundred dollars so taken in defendant’s place of business, and that defendants won and received the one hundred and sixty dollars from Boroughs; (2) that the money was gambled and lost by Boroughs without plaintiff’s knowledge or consent. Regarding the ownership of the money, plaintiff testified that’ in May, 1909, she had five hundred dollars which she kept in a trunk together with one thousand, five hundred dollars which she claimed her husband had given her. On cross-examination she testified in part as follows: “Q. The five hundred dollars that you say you received from your mother, what was that, a gift ? A. Why, yes; it was a gift in a way. Part of it was a gift, and about three hundred and fifty dollars was property that I sold back there to my mother. It was our estate. The other was a gift. . . . Q. You placed this money in a trunk in your room ? A. I did. Q. Two thousand dollars in bills ? A. Oh, you are mistaken. It was one thousand, five hun
J. S'. Daniels, a witness for plaintiff, testified that Frank Boroughs came to his grocery store in Ogden on May 13, 1909, and showed him a roll of bills, and said (quoting) “there was four hundred dollars in the roll. I think there was a twenty dollar bill on the outside of the roll. . . . He had four twenties, a ten and a five and some silver in his pocket that he took out and showed me and he' showed me this roll of bills.” According to plaintiff’s testimony, which, on this point, is not disputed, Boroughs prior to May 12, 1909, took from plaintiff’s trunk sums of money ranging from two hundred and fifty to five hundred dollars, and on May 12, 1909, he took all that remained in the trunk of the two thousand dollars, namely five hundred dollars. Boroughs’ money having been mingled with that which the record shows belonged to his wife, and the entire amount' (two thousand
But, aside from these considerations, the plaintiff, as I have pointed out, testified that the five hundred dollars taken from her trunk by Boroughs May 12th was the last of the “ready money” they had. This testimony, which is not disputed, when considered in connection with the other facts and circumstances referred to, was amply sufficient to support a finding of the jury that this money was practically all the money Boroughs had at the time of his interview with
I therefore concur in the conclusions announced in the •opinion written by the Chief Justice.
Dissenting Opinion
(dissenting).
I think there should be a new trial. I think the evidence is insufficient to sustain either the verdict of the jury or the findings of my Brethren. Plaintiff’s husband was by occupation a steam fitter, receiving three dollars and fifty cents a day. He had been working for a railroad company in Ogden. Prior to that time he lived in South Carolina, where he was in business. She was married to him April 11, 1909, in Ogden, where they then lived. He left her in August of that year. Since then she has not heard of him. She testified that shortly after the marriage she received five hundred dollars from her folks in South Carolina, and that her husband handed her one thousand, five hundred dollars making in all two thousand dollars. This money she testified, was kept in a trunk in a room in Ogden. As is already suggested, and as I think is shown by the evidence, and as evidently was found by the jury, one thousand, five hundred dollars of the two thousand dollars belonged to the husband. She testified that all of the two thousand dollars was taken by him from the trunk at different times between the 1st and the 12th days of May, 1909, and that the last amount, five hundred dollars, was taken by him on the afternoon of the 12th while she was at a theater. She testified that she asked her husband not to gamble; that she pleaded with him not to do so, and that she did not consent “to his gambling the money.” She also testified that each time her husband took any money she had knowledge of his taking it. It is not made to appear that she made any.objection to, or complaint of, his taking it. She did not testify that any of the money was taken by him without her consent or permission, or against her will, or that she made any complaint, or concerned herself about the taking of it, until in September and after her husband had left her. I mention this not as showing that plaintiff’s husband gambled any money with her consent, but as bearing on the question of ownership of the money. A witness testified that he saw plaintiff’s husband on the 1st, 13th, and 15th days of May, 1909, in the defendants’ gambling house. On the first occasion, the witness
The presumption, if any at all is to be indulged, is that he gambled his own money, and not that of his wife.