Sacramento daily record-union. [volume] (Sacramento [Calif.]) 1875-1891, 1886-06-30
FINDINGS On FAcT

ION the Goth day of January, 1886, the
defendant made and delivered to plaintiff
the promissory note set forth in the COM
plant by which he promised TO pay plain
tiff $3.50 one day after date. Plaintiff is
still the owner and holder of said note, and
defendant has not paid any part thereof,
although requested to do so before the
commencement of this action.
"The circumstances under which the
note was given, and its consideration, are
as follows: On the evening of said 30th
day of January, between 5 and o'clock,
the defendant entered the saloon of the
plaintiff and requested plaintiff to engage
with him in the game of throwing dice.
Plaintiff consented, and after they had
played short time third person came
into the saloon and joined with them in
the game Subsequently fourth person
olso played with them The game was
played for money, and also occasionally,
for drinks, and was continued until about
10 p. NJ. Plaintiff did not play all the
time. He would quit sometimes to attend
to matters of business about the saloon !;
but he played in the game most of the
time. During the evening the defendant
borrowed money @ number of times from
plaintiff. When sum was Dor
rowed. the amount was written
generally by defendant hinseif-on q
card, and when another loan was made the
last card was torn up and the whole
amount written on a new one. About, or
little after o'clock, the whole amount
thus borrowed was $3.50. Plaintiff then
took blank promissory note from book
containing numerous blanks OF that kind,
and, after dating it, wrote in the sum of
$3.50 and handed it to defendant, telling
him it was q note for S350-the amount
which he owed hinl-and asked him TO
sign it, Defendant took the note, looked
at it a few moments, and then signed it
and handed it to plaintiff. No part OF the
consideration of the note was money won
by plaintiff from defendant. Il was all for
money loaned by plaintiff to defendant
which plaintiff took out of his money
drawer and his safe. Plaintiff himself was
not winner at the game; and of the other
players, it does not appear who was win
ner or loser, when the game ended about 10
o'clock. There is no evidence OF any fraud
or of any conspiracy to cheat defendant,
or induce him to play.
1.-THE allegation of the answer, that at
the time the note was signed the defendant
was in state of intoxication which in
capacitated him from entering into the
alleged, or any contrsct whatever, is not
sustained by the evidence, and | therefore
find it not true.
FINDINGS OF Lave
Assuming that plaintiff knew that the
money loaned was to be used in playing
the game of dice, still his relations TO de-
PENDANT were simply that of one who loans
money to another, knowing that it is to be
used in playing such game. The act
that plaintiff himself played in the game
part of the time, in the absence of fraud, is
not material.
lone who borrows money cannot evade
its payment upon the ground of the lend
er's knowledge that it was to be used for a
special purpose, unless that purpose is I'M
lawful. The loan is good unless it is for
the express purpose OF a violation OF law
Throwing dice for money is not I'M
lawful not in violation of law Gaming
by itself is lawful by the common law, I'M
less it be accompanied by fraud [Story
on Contracts, Sec. $685. Many kinds of
games, however, are declared 10 be unlaw-
| full by statute in England and some of the
American States. In some adjudicated
! cases it has been held that money loaned
to be used in playing at a game thus de-
/ clared TO be unlawful, cannot be recovered
| but in no case has it been so held when
the money was TO be used in game not
unlawful. The Legislature of California
| has had the subject OF gaming before 1t re-
peatedly. and has declared unlawful and
prohibited large number of enumerated
games, and provided that money transac-
tons in relation to them should be void
But playing of dice has never been included
4 in the prohibited list. and thus is presented
a striking instance of the application of the
rule: The naming of one thing is the ex-
| clusion of the other
1t is claimed that plaintiff should moi
recover because the Civil Code provide:
that the consideration of a contract is no
lawful when it is contrary to good morals,
and because gaming in any manner is con
| trary to good morals; but such defense
if available at all, would be so only wher
suit is brought to recover money won a
gaming. This action is based upon prom
issory note given for money loaned
| "As final conclusion Of law ind tha