The issue on this appeal is whether the trial judge properly directed a verdict for the defendant at the conclusion of the proof. As we find that the evidence presented an issue of fact which was the sole province of the jury to pass upon, we reverse the judgment of the district court.

When this case came before us in 1958 on appeal from the dismissal of the complaint, we treated it as an appeal from summary judgment and we held that the pleadings and affidavits raised issues of fact as to whether the alleged fraudulent representations were made and, if so, whether the plaintiff relied upon them, 1958, 258 F.2d 44.

Upon the second trial, a jury at the first trial having failed to agree, the plaintiff testified that counsel for the defendant had represented to him in November 1956, when $1,800 was paid to the plaintiff for the release of his claim for alleged exploitation of his emulsion processes, that the defendant had no intentiion of making use of the formula which plaintiff claimed as his. The defendant's counsel, the only other person present on that occasion, testified to the contrary. Thus there was an issue for the jury to resolve. Although the plaintiff's story may well have seemed incredible to the trial judge, it was not for the judge to resolve the issues of fact. If the jury chose to believe the plaintiff, rather than the defendant's counsel, there would be sufficient support for the plaintiff's claim. None of the cases cited by the defendant support the action of the trial judge in directing a verdict.

Reversed and remanded.