#### A. M. Ridenhour v. Charles B. Atterbury.

1. Error—Without Injury Not Ground For Reversal.—It is not every error that will warrant a reversal, and when it is reasonably certain that no harm has resulted from an error there should be no interference by a court of appeal, on account of it; and in this respect each case must be judged by itself.

8. Instructions—Should he Considered as a Series and. as Applied to the Evidence.—This court does not regard the instruction complained of as contradicting those given for appellant, but at the most as being merely ambiguous and so indefinite that, standing alone, it would probably mislead the jury. When taken in connection with the other instructions and applied to the evidence it is not so harmful as to warrant a reversal.

Transcript, from a justice of the peace. Appeal from the Circuit Court of Montgomery County; the Hon. Alex. W. Hope, Judge, presiding.

Heard in this court at the November term, 1896.

Affirmed.

Opinion filed June 16, 1897.

Howett & Jett, attorneys for appellant.

Lane & Cooper, attorneys for appellee.

Mr. Justice Wall

delivered the opinion of the Court.

The plaintiff brought suit before a justice of the peace to recover the sum. of seventy-five dollars which he claimed was due him from the defendant for the price of a “ weigher,” which was attached to a threshing machine.

The case was removed by appeal to the Circuit Court where on a trial by jury there was a verdict for defendant followed by a judgment against the plaintiff for cost. Hence 'the present appeal by the plaintiff.

The only question for the jury was whether the weigher was sold as a part of the threshing machine outfit, for which defendant was to pay $1,350. The weigher was included in a chattel mortgage given on the outfit and was bought in by the plaintiff on foreclosure of the mortgage. The evidence was conflicting upon the stated question of fact, and the verdict ought to settle the dispute unless, as is argued *207by appellant, the court gave erroneous instructions calculated to produce the result. It is urged that instruction number five for defendant is faulty in advising the jury that if the weigher “ was an attachment to the threshing machine,” and if the defendant purchased said threshing machine for $1,350, and afterward paid said price, the verdict should be for defendant. The objection is that it was assumed if the weigher was an attachment to the machine it was sold and went with it.

It might be an attachment to and yet not a part of the machine, and not sold with it.

The instruction is erroneous, and should not have been given, because it contains the assumption suggested and is argumentative.

Perhaps the jury understood that if the weigher was an attachment merely it went with the machine, regardless of the proof that was offered as to the understanding and intention of the parties, but we can hardly think so. The whole issue before the jury was as to this very point. Did the plaintiff sell the weigher separate from or as a part of the machine ?

All the evidence was directed to that issue.

The instructions for plaintiff, in different forms of expression, presented the point very fully and distinctly, and while the instruction referred to is faulty, yet it is not probable the jury were misled.

They could not, as reasonable men, suppose the court intended to say that if the weigher was merely attached to the machine the finding should be for defendant. It was so attached.

There Avas no dispute about that, but the issue all the way through was whether it was sold separately. Beading this instruction with those given for plaintiff, and the others given for defendant, the series may be regarded as sufficiently accurate. Had there been any confusion as to the issue of fact, such an inaccuracy might be regarded as more serious. As it is, we think the jury would understand the term “ an attachment,” to mean the same “ as a part of,” Avhen they read the entire series. The issue was dis*208tinct and it was single. We do not think the conclusion would have been different if this error had not- been committed. It is not every error that will warrant a reversal, and when it is reasonably certain that no harm has been done by such error, there should be no interference on that account. Each case must be judged by itself.

When instructions are contradictory upon a vital point in issue, it may be impossible to say which the jury accepted and followed. We do not regard this instruction as contradicting those given for plaintiff, but at the most as being merely ambiguous and so indefinite as that standing alone, it would probably mislead the jury, yet when taken in connection with the others and applied to the evidence, it is not so harmful as to warrant a reversal.

The judgment will be affirmed.