#### HENDERSON-JARRETT COMPANY v. BUILDING AND LUMBER COMPANY.

(Filed 9 March, 1910.)

Verdict — Counterclaim—Issue Unanswered — Appeal a'nd Error— Harmless Error.

In an action involving a claim for damages for plaintiff and a set-off by defendant, an issue being submitted as to each: Held,, no reversible error arose from the failure of the jury to answer the issue upon the set-off, and judgment accordingly, it appearing in this case that the jury had considered the second issue in answering the first one.

*755Appeal from Qoohe, Jat April Term, 1909, of Pitt.

These issues were submitted to the jury:

1. In what amount, if any, is the plaintiff entitled to recover of the defendant in this action? Answer: Yes; $1,000.

2. In what amount, if any, is defendant entitled to recover of the plaintiff on account of its counterclaim, set out in its answer ?

The jury answered the first, but did not answer the second issue.

The court rendered judgment for plaintiff, and defendant appealed.

Moore, & Long for plaintiff.

Bhinner & Whedbee for defendant.

Pee Curiam.

We have examined the several assignments of error of the defendant, and are of opinion that no error was committed upon the trial below which is of sufficient importance to justify us in directing another trial.

The form of the first issue is such that it is evident that the jury considered the set-offs claimed by defendant under that issue.

Tailing the charge as a whole, and from the verdict of the jury as it stands, it becomes apparent that the jury did consider the sehoff and claims of the defendant, and reduced the amount of the recovery of plaintiff to $1,000, and in doing so they could not have done other than consider the matters in evidence under the second issue. This is doubtless the reason the experienced judge who tried this ease did not send the jury back with instructions to answer the second issue.

A consideration of the entire record convinces us that substantial justice has been done upon the trial and that no reversible error has been committed.

No error.