Page:North Dakota Reports (vol. 48).pdf/430

 EDGELEY CO-OPERATIVE GRAIN COMPANY, a corporation Respondent, v. H. SPITZER, Appellant.

Gaming—in action on note defended as having been given in gambling, evidence held to show loss was in “hedging” transaction.

1. In an action brought to recover on a promissory note in the sum of $4,000.00, the defense of no consideration was pleaded and relied upon. In that connection it was claimed the note was given for losses sustained in a gambling transaction to wit: the buying and selling of grain options. The evidence shows that the loss was occasioned by what is termed a “hedging” transaction, conducted by The Pomona Valley Farmers’ Elevator Company, (of which the plaintiff is the successor and now the owner of the note) for the defendant and at his request.

Gaming—where evidence showed note was not for grain gambling, directing verdict for plaintiff held not error.

2. At the close of the testimony the court directed a verdict in plaintiff’s favor and it is held for reasons stated in the opinion that in this there was no error.

Appeal and error—where plaintiff consents to modification of judgment correcting error, it will be so modified.

3. Defendant claims there is conflicting testimony with reference to the proper application of a certain sum of money, in amount $1,710.00, which he claims he ordered to be applied on the note. The judgment has been directed to be modified, plaintiff having consented, so that any benefit he would have received if the money had been applied on the note, instead of otherwise, viz: on an account, is secured to him and a new trial is therefore unnecessary. For reasons stated in the opinion, nothing would be gained by a new trial.

Appeal from the District Court of LaMoure County, Graham, J.

Judgment modified and affirmed.

John W. Carr, for appellant.

"The essence of a gambling transaction is that the particular trans-