The first contention of the defendant is that the contract is a gambling one on its face, for these reasons:
*402(1) No cotton is specified so as to enforce delivery.
(2) Delivery cannot be compelled, as contract provides for a settlement on an artificial price of cotton.
(3) Measure of damage provided is arbitrary and not such as the law provides.
Tlie contract calls for delivery of 75,000 pounds lint cotton at Trenton on or before 1 January, 1910. This is sufficiently specific.
It is true that specific performance of a contract to deliver cotton will not generally be enforced by a court of equity, because the failure to deliver the cotton may be compensated in damages. That does not necessarily stamp a contract as a gambling one.
That the measure of damages provided in the instrument for a breach of the contract differs somewhat from the rule of the law does not of itself conclusively indicate that it is a gambling contract on its face. This is decided in Harvey v. Pettaway, ante, 375.
While there is evidence in this case tending to prove that the contract sued on is a gambling contract, we think there are phases of the evidence to the contrary.
The’principles of law governing cases of this character are fully discussed and settled in the opinions of this Court at this term by Mr. Justice Hoke in Rodgers v. Bell, ante, 378; Sprunt v. May, ante, 388.
The case should be submitted to the jury upon the issues raised by the pleadings under appropriate instructions.
New trial.