Thompson v. Reiber
Thompson v. Reiber
Opinion of the Court
Opinion,
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.
Reference
- Full Case Name
- S. B. THOMPSON v. G. L. REIBER
- Status
- Published
- Syllabus
- (a) Under the rules of the oil exchange, a purchase of oil on one day was to be closed by a delivery of certificates through the exchange clearing house before the close of business on the next day. (b) Plaintiff, a broker in the exchange, purchased for the defendant, a customer, 50,000 barrels at 83, and notified the defendant thereof, who the next morning ordered the oil purchased on his account to be sold at once for cash. (o) The plaintiff made the sale, with the oil of other customers, at 75, and settled for the balance on his sheet in the clearing house by passing his check for the difference against him, which check was paid. (d) The defendant, in this as in many other transactions about the same time, furnished no money or security to the plaintiff, whose only profits in the orders were the commissions paid him by the defendant upon the amount of the purchase or sale. 1. In the action by the broker to recover from the defendant the loss on the purchase and sale referred to, the plaintiff testifying that the purchase of the oil for the defendant was bona fide, and that it would have been delivered the next day but for the positive instruction to sell for cash, the credibility of the testimony, and the question whether the purchase and sale was a wagering transaction with the intent to settle only for the difference resulting, were matters to be submitted to the jury.