Osgood v. Westphelling

72 Mo. App. 45, 1897 Mo. App. LEXIS 124

• Court: Missouri Court of Appeals
• Decided: November 1, 1897
• Status: Published

Opinion

Ellison, J.

This suit is on an account for $42 alleged to have been borrowed of plaintiff by defendant. Defendant denied that he borrowed any sum. Plaintiff recovered in the trial court.

The only witnesses were plaintiff and defendant. Plaintiff testified that he loaned defendant the sum of $42, and that he “knew” he wanted a part of it to gamble at poker. He did not know how much. That “he (defendant) used some of it I suppose to play poker on.”

Bm(m0eT:E^amblmg. e ense. The statute makes it a misdemeanor for anyone to loan another any money to bet at a gambling device if the money loaned is so used. Williamson v. Baley, 78 Mo. 636. Here the evidence gkowg ^0 m0I16y was loaned, with knowledge that a part of it was to be used to bet on a game, but it does not show that it was so used. The plaintiff’s supposition, under the circumstances shown, does not amount to evidence on that head. Ordinarily it would have been defendant’s duty to have shown the character of the loan as a defense. But since he denied borrowing any money whatever and relies upon the testimony of plaintiff, it must be of such character as to make out his defense in order to allow it to avail him. The case therefore as it stood at the close of the trial justified the court in giving the instruction complained of and we will not interfere with the result.

No brief has been made as to whose duty it was to show the exact sum illegally loaned if a part „ was illegal, or whether a part being illegal tainted the whole loan. These would have been important questions under any other view than the one we have taken above. Affirmed.

All concur.