Standard Club v. Saphire

102 S.E.2d 72, 97 Ga. App. 135, 1958 Ga. App. LEXIS 721

• Court: Court of Appeals of Georgia
• Decided: February 5, 1958
• Docket: 37012
• Status: Published

Opinion

Felton, Chief Judge.

The plaintiff in error contends that the ruling on the general demurrer to the original petition unexcepted to was the law of the case and was a “solemn adjudication” that the petition, even as amended, was good as against a general demurrer. This contention is without merit under the facts of this case. The original petition showed that the sale made by the defendant on behalf of the plaintiff involved “machines” but the amendment described such machines as “slot machines” and, therefore, the amendment materially changed the petition and the former ruling became extinct or nugatory (Holliday v. Pope, 205 Ga. 301, 308 (1), 53 S. E. 2d 350), and the petition as materially amended became subject to demurrer. Mooney v. Mooney, 200 Ga. 395 (1) (37 S. E. 2d 195).

The gist of an action for money had and received is equity and good conscience. Brackett v. Fulton National Bank, 80 Ga. Ga. App. 467 (56 S. E. 2d 486). The mere possession of “slot machines” is illegal and such machines are contraband. Elder v. Camp, 193 Ga. 320 (2) (18 S. E. 2d 622). Therefore, a contract for the sal© of “slot machines” is unlawful and against public policy. Since the illegal provisions of the contract had been executed and the parties are in pari delicto, neither a court of law nor of equity will interpose to give relief to either party but will leave them as they are found. Gaddy v. Silverman, 86 Ga. App. 239, 245 (71 S. E. 2d 277). See also, Hanley v. Savannah Bank & Trust Co., 208 Ga. 585 (65 S. E. 2d 26).

The court did not err in sustaining the motion to dismiss and in dismissing the action.

Judgment affirmed.

Qwillian and Nichols, JJ., concur.