Matta v. Katsoulas

192 Wis. 212 | Wis. | 1927

Stevens, J.

(1) The finding of the court that plaintiff told defendant that he should let her know if she won the car is supported by the great weight of the evidence. Under this arrangement defendant was given possession of the ticket and took possession of the automobile as bailee of the plaintiff, with the obligation to account to plaintiff for the automobile won by her ticket which was intrusted to his care for the purpose of attending the drawing.. The situation was such that the law implied an agreement on the part of the defendant to redeliver either the ticket or the automobile to the plaintiff. “No particular ceremony or actual meeting of minds is necessary to the creation of a bailment. ... It is the element of lawful possession, however created, and duty to account for the thing as the property of another, that creates the bailment, regardless of whether such possession is based on contract in the ordinary sense or not.” Burns v. State, 145 Wis. 373, 380, 128 N. W. 987.

(2) The defendant cannot defeat plaintiff’s recovery by showing that the automobile was secured by means of a lottery which was in violation of law.. The owner of the roof garden was the only one who could be heard to maintain that plaintiff was not entitled to the automobile because the drawing was held contrary to law or because plaintiff was not personally present when her number was drawn. The management of the roof garden raised no such question, but on the contrary awarded the car to the holder of plaintiff’s number when it was presented by defendant. The rule that the law will not enforce an illegal contract has application only as between the immediate parties to the contract. “While the law will not enforce an illegal contract, yet if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property belonging to his master, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction.” Kiewert v. Rindskopf, 46 Wis. 481, 485, 486, 1 N. W. 163.

(3) The fact that plaintiff handed her ticket to defendant on Sunday evening does not mean that she must depend upon a Sunday contract in order to recover. Plaintiff’s cause of action is not based upon contract, but upon tort, — upon the wrongful conversion of her property by the defendant and the resulting obligation which the law imposes upon him as a bailee.

By the Court. — Judgment affirmed. '