delivered the following dissenting opinion:
I cannot help thinking that the opinion fails to apply the sound legal doctrine, which it affirms, to the facts and rulings in the case. The case finds that the plaintiffs knew that the defendant, a citizen of Bangor, had no wheat to sell, but at his request bound themselves by contract, for him, to deliver 10,000 bushels during the next month at the seller’s option, at a certain price; that defendant furnished plaintiffs with $700 as a “margin,” but failing, though requested, to make further advances, as the price of wheat rose, they in accordance with the custom in Chicago, can*575celed the contracts at a loss of about $3000, and brought this action to recover the difference between that sum and the $700 margin deposited.
Tf there was not enough in this to justify the defendant’s request that the presiding judge would rule as matter of law that this was a wagering contract, and illegal and void,still it seems to me very clear that its character was so suspicious that it ought to have been left to the jury, under proper instructions, to say what the true intent of the parties was. Instead of doing this, the presiding judge cut off the defense by a peremptory ruling that under such circumstances the contract would be valid.
It is futile and evasive to argue that this ruling was justified, because, upon its face, the contract was a lawful one for the delivery of wheat at a future day. If it were designed and understood to be a mere gambling transaction, its terms would still be the same.
The real question was, whether it was the intent and expectation of these parties that the wheat should be delivered, or whether it was, that in case of a rise, a settlement was to be made upon such terms as they could get, and in case of a fall they were to receive the difference from the parties with whom the contract was made.
Nor do I think it can bo rightly said that “no question is here raised as to whether any fact in relation to the nature of the contract, and proper for the consideration of the jury was taken from them.”
The defendant excepted to the instruction given, as well as to the refusal to instruct. I think his exceptions should be sustained. I do not understand that the party who knowingly furnishes one with money to be used at the gambling board is any more entitled to the aid of the court to recover it, than the winning gambler would be to enforce the wager.
Dickerson, J., concurred in this dissenting opinion. Cutting, J., was “inclined to concur in this.”