Corbin v. Wachhorst

Foote, C. — Plaintiff brought an action against the defendant, founded upon the following promissory note: —

“ $350. Sacramento, January 30, 1886.

“ One day after date, for value received, I promise to pay to James H. Corbin, or order, $350.

“ H. Wachhorst.”

From the judgment rendered against him, and an order denying a new trial of the action, the latter has appealed.

The grounds of his defense, as set up in the action, were, —

1. That about the time he executed the note he was intoxicated, and that he was further plied with intoxicating liquors by the plaintiff, and fraudulently induced to sign the note without knowing what he did, and without any consideration whatever.

2. That the note was given for a consideration, if [412]any, which is contrary to the policy of the law and to good morals, in this: “That on said thirtieth day of January, 1886, the defendant visited the saloon of the plaintiff, and while in a state of intoxication was further plied with intoxicating liquors, and then induced by plaintiff to engage in a gambling dice-game with plaintiff; and while in a condition not to know what he was doing, fraudulently, and with the intent to deprive defendant of his money, was induced by plaintiff to wager large sums of money upon a throw of dice, upon which defendant is informed by plaintiff that he lost a large sum of money with plaintiff, and that for these alleged losses plaintiff, taking advantage of the incapacitated, condition of the defendant, fraudulently- obtained his signature to the alleged instrument; that there was no other consideration for said alleged promissory note, and that the same was for money alleged to have been lost by defendant while playing at dice with plaintiff.”

Upon evidence which is sufficient to sustain them, the findings of the court upon the issues thus made were, —

That on the day of the date of the note sued on, the defendant made and delivered it to the plaintiff; that the plaintiff is still the owner and holder of the note, and that no part thereof has been paid, although the defendant had been requested to pay it before suit brought; that “ on the evening of the said 30th of January, between five and six o’clock, defendant entered the saloon of plaintiff, in Sacramento city, and requested plaintiff to engage with him in the game of throwing dice. Plaintiff consented; and after they had played a short time, a third person came into the saloon and joined with them in the game; subsequently a -fourth person also played with them. The game was played for money, and also occasionally for drinks, and was continued until about ten o’clock, p. m. Plaintiff did not play all the time; he would quit sometimes to,attend to matters of business about the saloon, but he played in