Adler v. Searles

Cox, J., delivered the opinion of the court. This was a suit by appellee (plaintiff below) to recover of appellants (defendants below) a sum of money paid by mistake. Appellants pleaded the general issue, and gave notice that they would show on the trial that the transaction in issue was wholly based on gambling and wagering contracts. "Upon the trial plaintiff testified that defendants’ attention had been called to the payment by mistake, and that they promised to fix it up. Defendants, in their testimony, did not deny this, and made no claim that the money had not been paid by mistake. Defendant offered to show that commissions credited by plaintiff to himself on account of various gambling contracts placed by him for defendants amounted to more than the sum in issue, which, on objection, was not allowed. Peremptory instruction for plaintiff, and verdict and judgment accordingly. The contention of anpellants is that the dealings in question were based upon gambling contracts, and that fheir account had been charged with commissions claimed by appellee for negotiating his gambling contracts, which amounted in the aggre [411] gate to more than tbe amount sued for, and that (quoting from brief of counsel for appellants) “by reason of the illegality of the contracts in question, Searles was not entitled to retain these commissions, and that they could be set off against the sum sued for.” There was no error in the action of the court, and the verdict and judgment are right. Money paid by mistake may always be recovered. Affirmed.