On

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, Frank 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. 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.

1

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. 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

against law." This 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?

2

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 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

39 Utah-2

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 follow

ing 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 his passiveness or silence. . . . But the silence of the party, even when the declarations are addressed to himself, is worth very little, as evidence, unless where he had the means of knowing the truth or falsity of the statements." Mr. Jones in his 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 he acquiesced in the truth of the statements, they should be excluded. There is hardly any ground to infer acquiescence in such 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.

The decision in the case of Mattocks v. Lyman, 16 Vt. 119, is to the same effect. While lack of space prevents us from quoting all that was said between respondent and Peterson at the 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 his gambling house which was received by him or by any of his agents or servants. In order to make the 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 the truth with regard to when or how much money, if any, her husband had lost in appellants' gambling house. She merely assumed that her husband had gambled there, and therefore had lost the money. Nor was the statement in the nature of an accusation or interrogation, but was essentially speculative, in that respondent merely assumed

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. From 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