WOOD, District Judge.
This is a suit arising out of an unusual state of facts and based solely upon principles of equity as formulated in quasicontractual actions and now encompassed in the Restatement of Restitution. Both parties have moved for summary judgment. We have before us the deposition of plaintiff taken in this action, affidavits from both parties and the affidavits of several witnesses. Jurisdiction in this suit is based on diversity. Defendant is a resident of Pennsylvania and plaintiff a resident of the District of Columbia.
From the plaintiff's deposition, it appears that Mrs. Jones, a widow of about 42 years of age, was vacationing in Miami Beach in March 1964. While by the poolside of the hotel where she was a guest, she was approached by defendant until than a stranger. After some brief conversation, he invited her first to dinner and when rejected asked her to accompany him to the races that afternoon. On the way to the track, the two stopped off at a restaurant for lunch. While eating, Mr. Lewis, a Philadelphia lawyer and part owner of a race track, offered Mrs. Jones a $20 bill with which to bet and said "Here is $20. You do your own betting. Have fun. If you win more than $20 you can give me my $20 back. If you lose the $20, I don't care, because I am just glad you came to the track with me. It is much more fun to go with someone than to go alone." (Deposition P. 16.)
The two arrived at the track shortly after the races had begun. Plaintiff selected her horses independently from defendant's choices. At some time before necessary, defendant explained to plaintiff the operation of the twin double. She picked horses having names which bore some relationship to herself or her family.
Briefly, fortune prevailed and her ticket became worth over $81,000.
The parties then went to the mutuel room to recover. Defendant advised plaintiff that he could save her tax money by declaring him as her partner. She did so, not realizing its significance. Lewis then called her back and urged her to give him some money because "I made this afternoon possible for you." She declined. The mutuel director and ticket seller told her not to give anything. She was called again by defendant and again refused. She went back to the front of the room and was persuaded to step aside again by Mr. Lewis. He demanded one-third of the take. She refused the bid. Once again she was prompted by defendant and finally she "gave in". Plaintiff does not recall what was said except that defendant stated he had made the afternoon possible and should receive a portion of the winnings.
Mrs. Jones was in a high state of exhilaration for the whole period. She was surrounded by reporters and felt pressured on all sides. Before she conceded, she had been approached at the director's desk, her arm had been pulled and she had been asked by Lewis what she was going to do. He kept "hounding me, wanting me to give him some money." When asked whether she recalled how she arrived at the figure of $25,000 which she gave to defendant, she testified:
"No. I was just broken. I was awful excited. The phone was ringing. Reporters were waiting to talk to me. The photographer was there. There was so much confusion, and, as I said, every time Mr. Lewis talked to me then I would go back and the men would talk to me, and Mr. Lewis would call me aside, and it was just a big mess, and I finally broke under it. (Deposition P. 66.)