delivebed the opinion oe the Coubt.
Whether the contract, as claimed, was entered into, was a pure question of fact.
It is not complained improper testimony bearing upon it was admitted or proper testimony rejected.
The evidence was conflicting. In number the witnesses preponderated against the appellant. A careful examination of the evidence disclosed no reason why ive should assume to interfere with the verdict on the ground that it was not supported by the evidence.
We think the court properly refused to instruct the jury the contract was void if there was no intention on the part of the plaintiff to deliver the hogs, and no intention on the part of the defendant to receive the hogs, but that both plaintiff and defendant intended to settle by way of differences.
There was nothing disclosed by .the evidence warranting the submission of the question raised by the instruction.
The contract operated upon a specified lot of hogs, then in cars en route to Chicago, or in stock pens in that city, and as no delivery was necessary between vendor and vendee to transfer the property in them to the appellant. The rise or decline in price did not affect the appellee favorably or unfavorably. He was in any event to receive an agreed sum for the hogs, and nothing in the proof tended to show the parties intended to settle or could “ settle by way of differences.” The transaction was a bona fide sale so far as appellee was concerned.
There was no intent upon his part to gamble.
In order to make a wager both parties must intend it to be such. Pixley v. Boynton, 70 Ill. 351; Williams v. Tudman, 6 Mo. App. 269.
The contract ivas not illegal at common law or under the statute.
The judgment must be and is affirmed.