#### W. H. LILLY et ux. v. CAMPBELL E. SMITH et ux.

(Filed 1 October, 1930.)

Appeal and Error J e — Where alleged error would not change result of trial the cause will not be remanded.

Where issues submitted to the jury are not in accordance with the theory upon which the case was tried, but the result of the trial agrees with the theory and involves only a question of fact, the case will not be remanded for another hearing.

Appeal by defendants from Nunn, J., at March Term, 1930, of Pitt.

Civil action to recover $900.00, alleged overpayment in the purchase of a lot of land.

The case revolves around an owelty charge against said lot, existing in favor of Mrs. Sadie Lilly, which plaintiffs allege was to be considered as a part of the purchase price and adjusted accordingly. This was denied by the defendants.

From a verdict and judgment for plaintiffs, the defendants appeal, assigning errors.

Albion Dunn for plaintiffs.

Louis W. Gaylord for defendants.

Peb CubiaM.

The issues submitted are not accordant with the theory upon which the case was tried, but as the result agrees with the theory of the trial and involves only a question of fact, it would apparently serve no useful purpose to remand the cause for another hearing. Pate v. Gaitley, 183 N. C., 262, 111 S. E., 339.

No error.