#### FRICK COMPANY and H. W. SCOTT, Trustee, v. D. G. SHELTON.

(Filed 15 June, 1931.)

Trial G b — Verdict in this case held contradictory, and defendant was entitled to a new trial.

In an action on a note given for the purchase price of an engine the defendant pleaded a counterclaim, with supporting evidence, as to fraudulent representations inducing the purchase, the jury answered the issue as to fraudulent representations in the negative, but in another issue assessed damages against the plaintiff for such fraudulent representations : Held, the verdict is conflicting, and the instructions failing to point out the connection between the issues, and it being apparent that the jury was confused, a new trial is awarded on appeal.

Appeal by defendant from MacRae, Special Judge, at September Term, 1930, of Clay.

Tbis is an action for judgment on promissory notes executed for tbe purchase of an engine and secured by a deed of trust on personal property. A former appeal was reported in 197 N. C., 296.

At tbe commencement of tbe action there were three defendants, but tbe court dismissed tbe action as to J. G. Shelton and as to O. L. *72Shelton the plaintiff took a voluntary nonsuit. The verdict which follows sufficiently shows the nature of the action:

1. In what sum, if any, are the defendants, as partners, indebted to the plaintiff, Frick Company, by reason of the notes sued upon? Answer : No.

2. In what sum, if any, are the defendants, as partners indebted to plaintiff by reason of their failure to deliver the Case engine at Murphy, N. 0.? Answer:

3. If the defendants are not indebted to Frick Company as partners by reason of the notes sued on, in what sum, if any, is defendant, D. Gr. Shelton, indebted to Frick Company on said notes? Answer: Yes, $800 and interest from 8-27-1927.

4. If the defendants are not indebted to Frick Company, as partners, by reason of their failure to deliver said Case engine at Murphy, N. C., in what sum, if any, is D. G. Shelton indebted to Frick Company for said reason? Answer: Yes, $40.

5. What was the value of the Russell engine and boiler at the time the same was taken by the sheriff in claim and delivery and retained by the defendant upon giving bond required? Answer: $700 (by consent).

6. What was the value of the other machinery and material set out in the deed of trust, and retained by defendant, after the same had been seized by the sheriff at the time D. Gr. Shelton executed the statutory bond? Answer: $200 (by consent).

7. Did the plaintiff, Frick Company, falsely and fraudulently represent to the defendant, D. Gr. Shelton, or his agents, that the said Russell engine and boiler was a 25-horse power engine in first-class working-condition? Answer: No.

8. If so, was said defendant induced to.enter into the contract and buy said engine and boiler and execute said notes and deed of trust by said false and fraudulent representations of plaintiff, Frick Company? Answer: .

9. What general damages, if any, has the defendant, D. Gr. Shelton, sustained by reason of said false and fraudulent representations on the part of plaintiff, Frick Company ? Answer: $200.

10. What special damages, if any, is the defendant, D. G. Shelton, entitled to recover of plaintiff, Frick Company, on account of said false and fraudulent representations on the part of said plaintiff? Answer: None.

11. Is the plaintiff, H. W. Scott, trustee, entitled to the possession of said Russell engine and boiler and other machinery and material referred to in said deed of trust ? Answer: .

The trial court adjudged upon the verdict that the plaintiff recover of the defendant and his surety the sum of $800 with interest at 6 per *73cent from 27 August, 1927, and the additional sum of $40; that the defendant recover nothing on his counterclaim, and that he forthwith give up the personal property for foreclosure of the deed of trust; and in default thereof that the plaintiff recover of the defendant’s surety, etc.

The defendant excepted upon assigned error and appealed.

Frank S. Hill and Thomas J. Hill for plaintiffs.

J. B. Gray and Moody & Moody for defendant.

Adams, J.

The appellant’s brief contains several assignments of error, only two of which, in our view of the case, we need consider. These two involve the single question whether there is such inconsistency in the jury’s response to the seventh and ninth issues as to require a new trial. The issues complained of relate to false representations alleged to have been made by the Frick Company and to consequent damages sustained by the defendant.

In their answer the original defendants pleaded by way of defense the alleged false representation that the engine purchased of the Frick Company was a 25-horse power engine in first-class working condition. This is the explicit question presented to the jury in the seventh issue. Upon instructions which were clear and definite, the jury answered the issue in the negative, absolving the Frick Company from the imputation of fraud. The ninth issue has reference to the general damages which the defendant sustained by reason of the “said false and fraudulent representations on the part of the plaintiff, Frick Company,” and the jury assessed the damages at two hundred dollars. The appellant complains because this amount was not allowed him in the judgment:

If his Honor had instructed the jury to answer the ninth issue “None” or “Nothing,” if they answered the seventh issue “No,” and had said no more, the present assignments of error would have had no merit; but we do not find such an instruction in the record. On the contrary, we find the following instructions given with respect to the ninth issue: “Before you would be justified in finding the defendant is entitled to recover any general damages sustained, it is necessary for you to find such damages were sustained by reason of the false and fraudulent representation of the plaintiff. If you do not find by the greater weight of the evidence that there was a false and fraudulent representation, then the court charges you that you would answer the ninth issue Nothing. On the other hand, if you should find there were false and fraudulent representations made on the part of the plaintiff, Frick Company, to the defendant, and that those representations contained all of the four material elements of fraud, as I have defined them to you, and that by reason *74o£ Such false and fraudulent representations tbe defendant suffered general damages, then tbe court charges tbe defendant will be entitled to recover of tbe plaintiff tbe- difference between tbe actual value of tbe Russell engine as delivered to tbe plaintiff and its value as falsely represented by tbe plaintiff to be.”

There is nothing in tbe instructions showing tbe interrelation of tbe seventh and ninth issues; and as tbe jury awarded damages in answer to tbe latter, tbe reasonable conclusion is they would not have done so bad they not understood tbe instructions set out to be applicable to tbe ninth issue and to be independent of tbe seventh. That tbe jury was confused seems to be supported by an inquiry they made in reference to tbe ninth issue “after deliberating for some time”: “We want to ask if we can give any amount of damages we want to ?”

Tbe appellant’s assignments may be upheld on tbe principle stated in Bottoms v. R. R., 109 N. C., 72. It is not clear that tbe jury comprehended tbe instructions relating to tbe seventh and ninth issues; indeed, apparently they were misled. Where a verdict is so inconsistent or indefinite that tbe court cannot determine what judgment should be rendered in favor of a given party, or which of tbe parties is entitled to judgment, it must be set aside and a new trial awarded. Crews v. Crews, 64 N. C., 536; Mitchell v. Brown, 88 N. C., 156; Turrentine v. R. R., 92 N. C., 638; Morrison v. Watson, 95 N. C., 479; Porter v. R. R., 97 N. C., 66; Allen v. Sallinger, 105 N. C., 333.

Under tbe instructions given on tbe seventh issue tbe jury found there was no fraud; under other instructions which apparently they regarded as applicable only to tbe ninth issue, tbe jury found there was fraud. Tbe two findings are inconsistent and repugnant.

In support of tbe verdict tbe plaintiff cites Baker v. R. R., 118 N. C., 1015, and McKoy v. Craven, 198 N. C., 780. These were cases in which tbe plaintiff brought suit for damages, tbe issue of negligence being answered against the defendant, the issue of contributory negligence against tbe plaintiff, and damages being assessed. But in these cases there was no repugnancy in tbe answers of tbe first and second issues; tbe fact that tbe defendant was negligent did not imply that tbe plaintiff was.not negligent. Tbe defendant prevailed because tbe plaintiff was not entitled to damages resulting from bis own negligence.

New trial.