Doon v. Smith
Oregon Supreme Court
Appeal from Crook: W. L. Bradshaw, Judge. This is an action by Ah Doon against O. S. Smith to recover the sum of seven hundred and forty dollars, alleged to have been loaned by plaintiff to the defendant, and also the sum of one hundred and forty-five dollars, alleged to have been received by the defendant for the use and benefit of the plaintiff.
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Appeal from Crook: W. L. Bradshaw, Judge. This is an action by Ah Doon against O. S. Smith to recover the sum of seven hundred and forty dollars, alleged to have been loaned by plaintiff to the defendant, and also the sum of one hundred and forty-five dollars, alleged to have been received by the defendant for the use and benefit of the plaintiff. The complaint alleges, in substance, that on or about the sixteenth day of October, eighteen hundred and ninety-two, the plaintiff, at the instance and request of defendant, furnished, loaned, and delivered to him the sum of seven hundred and forty…
1Opinion of the Court
Opinion by
Mr. Justice Bean.
1. Plaintiff did not, at the hearing, controvert the position taken by defendant that if the money sued for was delivered to him to be used in gaming, under the circumstances disclosed, it cannot be recovered in a court of justice, (McKinnell v. Robinson, 3 Mees. & W. 434; Badgley v. Beale, 3 Watt, 263,) but he insists that such a defense is new matter, and must be pleaded before it can be proved. As a rule of pleading this is undoubtedly correct. A defendant who has not pleaded the illegality of the contract sued on has no right to offer evidence of such…
2Cases cited4 opinions
- Wilson v. WagarMichigan Supreme Court · 1873
- Buchtel v. EvansOregon Supreme Court · 1891
- Campau v. DeweyMichigan Supreme Court · 1861
- Cardoze v. SwiftMassachusetts Supreme Judicial Court · 1873
3Cited by53 opinions
- State v. OsborneOregon Supreme Court · 1909
- State v. SavageOregon Supreme Court · 1900
- Bradtfeldt v. CookeOregon Supreme Court · 1895
- Capital Lumbering Co. v. LearnedOregon Supreme Court · 1899
- Goltra v. PenlandOregon Supreme Court · 1904
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