Aside from the testimony introduced by the defendant for the purpose of showing a clear understanding between the plaintiff and himself that the shares of stock ordered from time to time by the latter were neither to be delivered nor accepted,— in other words, that their business transactions with each other were merely successive steps in the execution of a wagering contract, — there was testimony tending to prove that shortly before the termination of their business relations, the defendant called for the stock, and his demand was honored by the production and tender thereof, but he refused to accept the stock and pay for it. If these facts were established to the satisfaction of the jury, it is immaterial what was the character of the transactions previously thereto. The testimony referred to was fairly submitted to the jury by the learned president of the common pleas, with correct and adequate instructions as to the effect of such demand, tender and refusal, in case the jury found the facts in relation thereto to be as claimed by the plaintiff. The verdict necessarily implies a finding of these facts in plaintiff’s favor and should therefore be conclusive.
There is nothing in either of the specifications that requires discussion. They are all dismissed.
Judgment affirmed.