Norman Macleod, Kt., C.J.
1. The plaintiffs filed this suit against the defendants to recover Rs. 1396-9-0 being differences on the suit contracts for purchase and sale of cotton seeds. The defence was that the contracts were of a wagering nature, and the onus would lie upon the defendants to prove that fact. The trial Court held that the contracts were wagering contracts and dismissed the suit. The appellate Court came to a different conclusion and decreed the suit in favour of the plaintiffs.
2. The question whether the contracts were of a wagering nature was really a pure question of fact, that is to say, the party disputing that he was liable under the contracts would have to show that at the time the contracts were entered into, the parties did not intend to carry out the contracts, but agreed to abide by the prices ruling at the due dates, when differences would be paid or received. It is unfortunate that on such a simple question, it was considered necessary in the Courts below, before deciding the case, to cite so many authorities. When it is a question of fact in each case as to what was the intention of the parties, there is no necessity whatever to refer to other cases. The test to apply has long ago been definitely settled. The appellate Judge in dealing with the oral evidence found that he could not come to a definite conclusion in favour of the defendants, and it would necessarily follow, as the defence was not made out, that the defendants could not escape from the legal consequences of the breach of the contracts. The defence having failed in the opinion of the learned appellate Judge, the plaintiffs were entitled to a decree. As a matter of fact no second appeal lies as no question of law arises in the appeal.
3. The appeal must be dismissed with costs.