Opinion,
Me. Justice Paxson:We think it was error to withdraw this case from the jury. It may be that the purchase of oil was a gambling transaction, and that the jury might have found it so. But the case depended upon the oral testimony, and that was for the jury. The learned judge instructed them that “under all the evidence in the case your verdict must be for the defendant.” This withdrew from the jury the question of the credibility of the witnesses. It is true the principal testimony tending to show that this was a gambling transaction, came from the plaintiff himself. At the same time if, as the plaintiff testified, this was a bona fide purchase of oil, and the only reason why a full delivery was not made was that such delivery was prevented by the positive instruction of the defendant the next morning to sell the oil for cash, and the sale in pursuance of such instructions was to the same party from whom the plaintiff had bought it, there was a question left for the jury. Had the instruction of the court been that if the jury believed from the evidence that there was no delivery and no intended delivery of the oil, but that it was a mere sale upon a margin with the intent to settle for differences, the case would have been free from difficulty. As it stands we think the question of its being a wagering transaction should have been left to the jury.
Judgment reversed, and a venire facias de novo awarded.