Boroughs v. Peterson

FRICK, C. J. Respondent brought this action against the appellants to recover the sum of two thousand dollars as for money had and received by them for her use and benefit. The material allegations in the complaint, in substance, are: That the appellants were conducting a gambling house in Ogden City, Utah; that respondent on the 15th day of April, 1909, was the owner of two thousand dollars in cash; that between the date aforesaid and the 13th day of May, 1909, respondent’s husband took said money from her possession without her consent, and, contrary to her directions or instructions, he lost the same by gambling in the gambling house of appellants, and that they by that means and in that manner obtained and received said two thousand dollars “for the use and benefit of the plaintiff herein;” that before bringing the action respondent demanded said money from appellants,, which they refused to return to her. The answer, in legal effect, amounts to a general denial. A trial to a jury resulted in a verdict and judgment in favor of respondent for the sum of five hundred dollars. The appellants present the record to this court on appeal. The principal error assigned is that the verdict is not supported by sufficient evidence. The controlling facts developed at the trial are substantially as follows: Respondent on the 11th day of April, 1909, married one Erank Boroughs. Respondent and her husband prior to their marriage came from the state of North Carolina and were married at Ogden City, Utah. After respondent came to Ogden, she received about five hundred dollars from home, a part of which she received as the proceeds of the sale of property which she had sold, and the remainder was a gift. Fifteen hundred dollars she says her husband gave her about three — 15 — days after they were married. When she was asked with regard to this gift and what was said by her husband with respect thereto, her answer was: “Not other than to take care of it — gave it to me that I might invest it in any way that I wished. ... We had a house in view. ... We thought we would invest the money in and live in it.” When she was further asked to state how her husband “came to give you that money,” she said: “Well, not other than what is a man’s is his wife’s.” She further said that she kept all of the money aforesaid in her trunk in the room where she and her husband lived; that both she and he had access at all times to the trunk, and that they were the only persons who did have access thereto; that during the forepart of the month of May, 1909, a large portion of the money was taken from the trunk in sums from two hundred and fifty dollars to five hundred dollars at a time; that on the 12th day of May five hundred dollars remained, and that that sum was-taken by her husband on that day; that the money was all gambled against her will. It further appeared that her husband was seen gambling in áppellant’s gambling house at least twice. On one occasion he was seen to lose eight twenty dollar bills, amounting to one hundred and sixty dollars, and he was seen playing a game denominated faro, which, it seems, was played by first obtaining what by the witness are called chips. These chips, it seems, were of different denominations or valuesl The witness said that respondent’s-husband had in his possession about one hundred and fifty dollars worth of those chips, but whether he bought them with money, whether he had won any or all of them, or whether he finally was winner or loser, the witness did not know. This was practically all the competent evidence with respect to the gambling of the husband except the inference-that he lost the money in that way at some time and at someplace because he had the money at one time and had parted with it in some way by the 13th of May aforesaid. Counsel for respondent, however, places strong reliance upon what he-insists amounted to an admission by one of appellants. The alleged admission came about as follows: When all the16 money was gone, it seems respondent’s husband told her he had lost it at' gambling. She then called to see Mr. Peterson, one of the appellants, and she says she told him that: “My husband, Prank Boroughs, gambled two thousand dollars in your gambling house, and I am left without anything at all.” She further told Peterson of her destitute condition, that she was indebted to various persons, and asked him to “give me just enough to go to my mother, who lives in South Carolina, and to pay those just debts which I owe.” She further says that she told Peterson that two thousand dollars was the amount lost by her husband, “but, if he would give me one thousand dollars, I would never say another word and he would hear no more from me. . . . He told me he would study over it, and see what he could do about it.” She said she gave Peterson three days to think it over. On the third day she called Peterson up over the ‘phone, and her testimony proceeds as follows: “He told me that he couldn’t afford — that that was the way they made their living, and he couldn’t afford to listen to the whims of a woman.” She said that she continued pleading with him, “and, he said if it was my money, I should have taken care of it before that hour, and that he couldn’t afford to give it back.” We remark that the evidence, if believed by the jury, was sufficient to sustain a finding that at one time respondent had in her possession the sum of two thousand dollars. In view of the verdict, however, the jury must have come to the conclusion that her husband had not made the gife of one thousand, five hundred dollars to her, but that he still regarded it as his own money. While there is considerable evidence on behalf of appellants which is flatly contradictory of respondent’s statements, yet it is not deemed necessary to notice 1 any of it on this appeal, since, for the purpose of the question before us, we must assume what respondent said was true. The principal assignment of error insisted on by appellants, stated in counsel’s own language, is: “That the evidence is insufficient to justify the verdict, and that it is — 17 — against law.” Tbis assignment is -supported by an attempt to specify the particulars wherein it is claimed the evidence is insufficient. Counsel for respondent, however, insits that the specifications are wholly insufficient, and that they do not conform to rule twenty-six of the rules of practice of this court. Counsel therefore insists that we must disregard the assignment. We remark that, while the particulars wherein the evidence is insufficient are perhaps not stated as fully and as specifically as they could'have been, yet, in view of the whole record, we think the specifications are sufficient, and that they substantially comply with the rule, aforesaid. The question to be decided, therefore, is: Is the evidence sufficient to support the verdict of the jury ? In the absence of a statute, probably the only right of action respondent had was to sue appellants as she did, namely, for money had and received by them for her use and benefit. To sustain this action, however, a plaintff must show that “there has been an actual receipt of money by the defendant or something equivalent to it.” (Abbott’s 2 Trial Evidence [2 Ed.], p. 337.) In addition to this, “the evidence must tend to show a definite sum, or certain data from which by arithmetical calculation the jury may ascertain the sum.” (Id., p. 340.) The only evidence from which it possibly could be found that appellants received any money belonging to respondent is that of the witness who saw her husband lose eight twenty dollar bills in appellant’s gambling house about the date the last of respondent’s money was taken from her trunk when the foregoing statements are considered in connection with the statement of another witness who at that time saw her husband with a “large roll” of paper money in his possession, and on the day following he wanted to borrow five dollars from the witness. But counsel for the respondent insits that, although it be conceded that apart from Peterson’s admissions the evidence is insufficient to support the finding of the jury, yet, when his admissions are given effect, as they must be, they alone are sufficient to sustain the finding. Counsel does not — 18 — contend that the admissions were what are termed direct or express admissions, but, to state counsel’s contention in his own language, he says: “Peterson impliedly admitted that the money was lost in the gambling house, and such admission is sufficient to sustain the verdict.” The alleged implication is based upon the contention that at the time respondent told Peterson that her husband had lost money in his gambling house he did not directly nor categorically deny her statement. We are not prepared to hold that what Peterson said or failed to say is tantamount to an admission, however, that respondent’s husband lost any money in his gambling house, or that the husband gambled in Peterson’s house, or that the money was lost while the husband was playing with any person or persons who were connected with the house or who were the servants or agents of appellants. Nor is there the slightest evidence that Peterson at the time the alleged admission was made had any personal knowledge as to whether respondent’s husband had gambled and lost any money in appellant’s house. The only statement relied on in this regard by counsel is the statement attributed to Peterson “that he could not afford to give it (the money) back.” When, however, the statements that Peterson made to respondent are considered as a whole, as they must be, it is very clear to us that Peterson, if he used the expression at all, did not use it in the sense that counsel now places upon it. Peterson emphatically told respondent at the first interview that he did not know anything about her husband’s gambling — that he had no knowledge respecting the facts, and nothing is made to appear that he had any more knowledge respecting them on the second and final interview over the phone. Under such circumstances mere silence — that is, the mere fact that Peterson did not directly and in express terms deny respondent’s claim that the money was gambled in appellants’ house — would in law not amount to an admission. The law upon this subject is clearly and tersely stated by Mr. Chief Justice Bell in the case of Corser v. Paul, 41 N. H., at page 29, 77 Am. Dec., at page 756, in the follow19 mg language: “Admissions may be implied from the acquiescence of the party; but, when it is acquiescence in the conduct or language of others, it must appear that such conduct was fully known, or the language fully understood by the party, before any inference can be drawn from bis passiveness or silence. . . . But the silence of the party, even when the declarations are addressed to bimself, is worth very little, as evidence, unless where be bad the means of knowing the truth or falsity of the statements.” Mr. Jones in bis work on Evidence (2d Ed.), section 289, in speaking of implied admissions by silence, says: “When there is no natural or reasonable inference from the silence of a party that be acquiesced in the truth of the statements, they should be excluded. There is hardly any ground to infer acquiescence in sucb cases, unless it appears that the truth or falsity of the statement made must have been within the knowledge of the party sought to be charged.” the text quoted from Corser v. Paul, supra, and that from Jones, is supported by the authorities. Tbe decision in tbe ease of Mattocks v. Lyman, 16 Vt. 119, is to tbe same effect. While lack of space prevents us from quoting all that was said between respondent and Peterson at tbe two interviews, yet we think we have quoted enough to show that there arose neither a natural nor a reasonable inference from what was said that Peterson admitted by implication even that respondent’s husband either gambled or lost any money in bis gambling bouse which was received by him or by any of bis agents or servants. In order to make tbe admission worth anything as evidence, that is just what would have to follow from Peterson’s silence. Moreover, it is- manifest from the whole tenor of respondent’s statement to Peterson that she neither knew nor pretended to know tbe truth with regard to when or bow much money, if any, her husband had lost in appellants’ gambling bouse. She merely assumed that her husband bad gambled there, and therefore bad lost tbe money. Nor was tbe statement in tbe nature of an accusation or interrogation, but was essentially speculative, in that respondent merely assumed — 20 — certain things concerning which neither she nor Peterson seemed to have any knowledge. Under such circumstances, we do not think it was the duty of Peterson to either affirm or deny respondent’s statements, and, if he was not, then, in the eye of the law, he cannot be prejudiced by his silence. If it -were once conceded that silence under such circumstances would be sufficient to authorize a jury to find against a party in an action for money had and received,. then no one would be safe from an attack of this character. So long as there is no statute which prescribes and defines under what circumstances and upon what evidence money lost by gambling may be recovered back, we are forced to look to and enforce the ordinary rules .of evidence, regardless of the fact that our sympathies are all with the unfortunate wife. In this case there is some evidence upon which a jury could base a finding that respondent’s husband had lost one hundred and sixty dollars of her money in appellants’ gambling house. Prom the evidence (and especially because no explanation nor denial was made that the husband 3 lost the money as testified to by the witness referred to, although one of appellants testified that he employed “thirty-five or forty people” in the gambling house) the jury were authorized to infer that since the money was lost in appellants’ gambling house under the circumstances detailed by the witnesses, appellants did receive it. We cannot see, however, how the verdict has any support except for the one hundred and sixty dollars. So far as the chips, which the witness says the respondent’s husband had, amounting to one hundred and fifty dollars, are concerned, it is just as likely that he had won them as it is that he had paid that amount of money for them to appellants. Moreover, there is not the slightest evidence that respondent’s husband lost any money at that time, nor that he did not win some instead of losing it. As we have seen, this action is one for money had and received, and hence is governed by the rules of evidence to which we have heretofore referred. Under those rules, although we should assume that respondent’s husband lost some money when he was seen with the chips, yet there — 21 — is nothing to show, nor is there any data from which any inference can be drawn, what the amount lost, if any, was. There is therefore not sufficient evidence to support the verdict of the jury. But, as we have said, there is some evidence which in our judgment is sufficient to support a finding that appellants have received the sum of one hundred and sixty dollars belonging to the respondent. Upon this point the un-contradicted facts are that on the 12th day of May, 1909, respondent had five hundred dollars of the two thousand dollars left. The five hundred dollars was paper money, and was left in her trunk On that day she left home and left her husband in charge, who was the only person'who had access to the trunk in which the money was. When she returned home on that evening the five hundred dollars were not in the trunk. On the day following, the 13th, the husband of respondent was by a witness seen with a large roll of paper money containing some twenty dollar bills.. On the evening of that day another witness saw the husband in appellants’ gambling house, gambling. At that time the witness saw him lose while playing a game called craps in the gambling house of the appellants eight .twenty dollar bills, or the sum, of one hundred and sixty dollars. On the day after the evening aforesaid — that is, on the 14th day of May, 1909 — the husband came to the same witness who saw him with the large roll of bills on the 13th and wanted to borrow five dollars from the witness. The only fact that is not established beyond question is the one of ownership of the one hundred and sixty dollars lost as aforesaid. It is suggested that it is just as probable that the one hundred and sixty dollars was part of the one thousand, five hundred dollars 'belonging to the husband as it is that it was part of the five hundred dollars belonging to respondent. We are of the opinion, however, that, taking into consideration all the facts and circumstances, the jury were authorized to find that the one hundred and sixty dollars lost as aforesaid was a part of respondent’s five hundred dollars. It will be remembered that by the morning of the 12th day of May the husband of respondent had taken one thousand, five hundred dollars of — 22 — the two thousand dollars, and at that time only five hundred dollars remained. It is reasonably clear that the husband regarded the one thousand, five hundred dollars as his own and the five hundred dollars as belonging to respondent. In view of this there is no presumption that he took respondent’s money with which to gamble so long as he had money of his own. Indeed, the presumption is to the contrary. The jury, therefore, had a right to infer that the five hundred dollars that were left in respondent’s trunk on May 12th belonged to her. They also were authorized to infer that the husband took the same from the trunk on that day, and that the money he had and lost on the following day as detailed by the witness was respondent’s money. The only difficulty with the verdict of the jury as it now stands is that there was no direct evidence, nor any fact from which the jury could infer, that the husband had lost the whole five hundred dollars in appellants’ gambling house. While he may have lost that entire amount by gambling, yet it is just as probable that he lost it eleswhere than in appellants’ gambling house. Not so with the one hundred and sixty dollars. As to that sum, there is positive evidence that he lost it in appellants’ gambling house, and hence the jury had a right to infer that appellants received at least that amount of respondent’s money. While the evidence upon the question of ownership is not as satisfactory as it might be, yet in our judgment there is some substantial evidence upon which to base a finding that appellants have received the sum of one hundred and sixty dollars of respondent’s money for which they should account to her. Respondent, therefore, is entitled to a judgment for the sum of one hundred and sixty dollars with legal interest thereon from May 13, 1909, to the present time. Ordinarily, in view that this is a law case, we should reverse the judgment unconditionally. In view, however, that it is practically certain that appellants have no defense as against the amount aforesaid, and in view 4 that respondent may elect to take a new trial in case she has other evidence to show a greater liability, we shall — 23 — not do so in tbis case, but shall follow the case of Foulger v. McGrath, 34 Utah, 86, 95 Pac. 1004, upon this point. It is therefore ordered that, in case respondent shall file with the clerk of this court within twenty days after notice of this decision her consent to remit from the judgment all except the sum of one hundred and sixty dollars with legal interest thereon, -then the judgment will be affirmed without costs to either party; otherwise the judgment will be reversed, with costs to appellants.