Page:North Dakota Reports (vol. 48).pdf/431

 action shall contemplate no delivery, without reference to the making of any other deal.” John Miller Co. v. Klonstad, 105 N. W. 164.

It is also well settled that where the principal cannot recover because of the gambling nature of the-transaction, neither can the agent recover. Dows v. Glaspell 60 N. W. 60.

“Transactions for the sale and delivery of grain or other commodities to be delivered at a future day are not pér se unlawful, where the parties in good faith intend to perform them according to their terms. But contracts in form for future delivery, not intended to represent actual transaction, but merely to pay and receive the difference between the agreed price and the market price at a future day, are in the nature of wagers on the future price of the commodity and void.” Mohr et al v. Miesen (Minn.) 49 N. W. 862.

The fact that a note had been given by the defendant to cover the loss or a portion of the loss on the gambling transactions does not change the rule so as to preclude him from setting up as a defense the fact that the consideration for the note was represented by losses on the various gambling transactions.” Embrey v. Jemison, 131 U. S. 338; 9 Sup. Ct. Rep. 776; Dows v. Glaspell, 60 N. W. 60 (N. D.).

The question of whether the creditor applied a payment otherwise than as directed by the debtor is one for the jury. Root v. Kelly, 39 Misc. (N. Y.) 530; 80 N. Y. Supp. 482.

“Generally the question of application of payments by the parties as determined by their intention is one of fact for the jury.” 30 Cyc. 1296.

Hutchinson & Lynch, for respondent.

The court is justified in directing a verdict where the evidence is undisputed or of such conclusive character or so preponderates in favor of the plaintiff that the court in the exercise of sound judicial discretion would be compelled to set aside a verdict in opposition to it. 38 Cyc. 1567 to 1571.

The court did not err in directing a verdict for the plaintiff on all the issues of the case. Buchanan Elevator Co. v. Lees, 37 N. D. 27; The John Miller Co. v. Klovstad, 14 N. D. 435; 105 N. W..164; Bibb v. Allen 149 U. S. 481; 13 Sup. Ct. 950; 37 L. ed. 819; Clews v. Jamieson, 182 U. S. 461; 21 Sup. Ct. 845; 45 L. ed. 1183; Chicago Board of Trade v. Christie G. & S. Co., 198 U. S. 236; 49 L. ed. 1031; Van Duzen Harrington Co. v. Jungeblut, (Minn.) 77 N. W. 970; Wall v. Schneider