Pearce v. Provost

9 Del. 467

• Court: Superior Court of Delaware
• Decided: July 5, 1873
• Status: Published

Opinion

Bayard.

The admission and effect of the demurrer was conclusive, of course, in that action, but it was not so in this which is another suit, although between the same parties.

The Court.

We think .it would be carrying the doctrine of estoppel too far to hold that the defendant is concluded and estopped by the judgment on the demurrer in the former suit from contradicting or denying in this suit, that the plaintiff had won the wager referred to, or from now proving that the defendant as the umpire of the parties to it, had decided it against the plaintiff and paid the whole amount of it over to the other party, as this suit, although between the same parties, is not in the opinion of the Court for the same identical cause of action, since that was for the whole amount of the wager alleged to have been won by the plaintiff, but which the Court held he could not recover if it was so, whilst this suit which has been brought since that decision, is simply for the one. hundred dollars staked and deposited by him in the hands of the defendant at the time of entering into the wager.

It was then proved on behalf of the defendant that he had so decided the wager and had paid the whole amount of it to Given as the winner of it, but it was also proved on the cross examination of the witness that he at the same time had taken a bond of indemnity from him to refund the money or any part of it, in case he should have to pay it to the plaintiff. It was further proved that !he had so paid it to Given, after demand made upon him by the plaintiff for it, and after the institution of the former suit by him for the recovery of it.

Gordon.

The contract of wager in the ease had been formally adjudged by the court to be illegal and void, and that no action would lie upon that contract for the recovery of the amount of it, even if the plaintiff had won it, hut this suit which was for money had and received to the amount of one hundred dollars simply, and which had originally belonged to the plaintiff and been staked and deposited by him in the hands of the defendant, as his half of the wager entered into on the occasion, was on another and entirely different contract and cause of action, the former suit being on an express and specific contract for the recovery of two hundred dollars according to the spe cial terms and conditions of it, and this being on an implied contract and promise merely by the defendant to"pay him one] hundred dollars had and received by him on that occasion to and for the use of the plaintiff in contemplation of law under all the facts and circumstances provedjin the case ; and there could be no doubt of the right of the plaintiff to recover in it under all the facts proved. Jacobs v. Walton, 1 Harr. 496. 1 Greenl. Ev. secs. 528, 532. Hadley v. Green, 2 Crompt & Jerv. 374.

The adjudication on the same cause of action, between the same parties, upon a matter directly in issue in the suit, was absolutely final and conclusive, and could not be controverted or called in question again in any other suit between them, except on the review of it in error or on appeal from it. 2 Harr. 128. 4 Harr. 188. 16 Johns. 136. 2 Strange 1241. 2 Smith’s Ld. Ca. 790, 813. But although this was held to be a void and illegal bet by the court, the plaintiff could not rescind the contract and recover back his stakes or portion of the wager deposited by him, after it had been decided by the person selected, and been paid over by him to the winner, without notice previously served upon him to that effect. Dewes v. Miller, 5 Harr. 347. 8 Johns. 147. The demand which had been proved was made upon the defendant for the whole amount of the wager before the commencement of the other suit, and would not suffice for this suit which was for another and a different claim, and which was not commenced until two years after the defendant had decided the bet in favor of the other party, and paid the whole amount of it over to him. But the declaration and bill or particulars filed in the other suit were for the whole amount of the wager, and also for the one hundred dollars, or the half part of it deposited in the hands of the defendant by the plaintiff, while the demurrer was general and to the whole of the declaration, as explained in the bill of particulars, to the latter, as well as to the former demand alleged in it; and the judgment upon it was, or course, against both of the causes of action embraced in it, and was, therefore, final and conclusive against the plaintiff on each of the causes of action stated in it.

Gordon, replied.

The Court,

Gilpin, C. J,,

charged the jury, that if the former suit referred to between the same parties had been for the same cause of action as the present suit between them, the judgment entered on the general demurrer in that suit, would have been final and conclusive against the plaintiff in this action, and he could not recover in it. But the record showed that the other suit was not for the same cause of action as this; while the only question presented for the consideration of the court on the argument of the demurrer in that case was whether the plaintiff as the winner of the wager, was entitled to recover the whole amount of it from the defendant on the declaration and bill of particulars filed in the case. For no question was then raised as to whether he had a fight to rescind the contract of wager with the other party to it, and to recover in that action the one hundred dollars staked by him and deposited in the hands of the defendant when the bet was made. The judgment on the demurrer was for the defendant, or in other words, that the action would not lie in that case to recover the two hundred dollars, the amount of the wager, even admitting that the plaintiff had won it, as was alleged hv him in the declaration. This action, however, is not on the contract of wager as entered into between the parties to it, or for the same cause of action, but is an action of indebitatus assumpsit for money had and received by the defendant to and for the use of the plaintiff, in which he simply seeks to recover one hundred dollars, the amount of the stake deposited with the defendant by him at the time the bet was made, and as the court held the contract of wager to be illegal and void and a nullity in the other case, and the amount of it was paid by the defendant to Given without the consent of the plaintiff and contrary to his wishes at any time made known to him after the bet was made, he is entitled to recover the amount sued for in this action.