¶1 On Rehearing.
¶2 [.En Banc. June 30, 1926.]
¶3 After tbe Departmental opinion in this case was filed tbe respondents presented a petition for rehearing, which was granted. In tbe petition and upon reargument, they sought to have reviewed tbe ruling of tbe trial court in withdrawing from the jury, *484 at the conclusion of their testimony, the defense of fraud in inducing the execution of the note and escrow agreement. After this defense was withdrawn from the jury, the case was submitted and a verdict returned in favor of the respondents. Upon appeal, the judgment entered upon the verdict was reversed.
¶4 The respondents claim that, since they were not in a position to raise the question at the time the case was first heard upon appeal, they should now be given an opportunity to present it and have it considered. It will be- assumed for the purposes of this case only, but not decided, that the question is now properly before us. The ruling, however, of the trial court in withdrawing from the jury the defense of fraud, at the conclusion of the evidence offered by the respondents, was clearly right. The parties were dealing at arms ’ length and with reference to a commodity which was, at least, of highly speculative value. What the appellant may have said with reference to the value of' the roubles and as to what the political, economic and financial conditions of Russia would be, were matters upon which Mr.-Colby had no right to rely. He was a man of intelligence and experience and could have ascertained, had he cared to do so, what the value of the roubles at the time of the purchase was.
¶5 It follows that the judgment must be as directed in the Departmental opinion.