The opinion of the court was filed June 1st, 1885.
Pee Cueiam.We adhere to the rule that an agreement for the purchase of stocks on margin without any intention of delivering the stock is a gambling contract, which will not support an action between the parties thereto. That, however, is not this case. Here there was no agreement between these parties by which one was to buy of the other. The defendant in error did not agree to sell to the other party; but, at the request of the latter, and for him, the former agreed to buy the stock specified. He was to lend or advance the money to an amount sufficient *181to make the purchase, but was not to own the stock himself. With his money thus advanced he caused the stock to be purchased for the plaintiff in error, and notified him of the purchase. It was delivered to the broker of whom it was purchased, and ready for delivery to the plaintiff in error whenever he was prepared to pay the unpaid portion of the purchase money. The evidence shows that he recognized it as his stock. The jury has found under a fair and clear charge that the transaction between the parties was not a gambling contract, but was founded on an actual sale and purchase of the stock by the defendant in error for the plaintiff in error, and that the stock was bought with an intent to deliver the same to the latter. The fact that the defendant may have purchased for other persons, other stocks, under arrangements which would stamp them as wagering or gambling transactions, is wholly irrelevant. All the evidence offered as to contracts with other persons was therefore properly rejected. The intention of the parties to the contract is to be ascertained by their acts and declarations, and not from their thoughts unexpressed. A careful examination of the whole case does not disclose any sufficient cause for disturbing the judgment.
Judgment affirmed.