#### CLEVELAND MILL AND POWER COMPANY v. A. A. RICHARDS, F. M. NEWTON and C. A. BRITTAIN et al., a Partnership, Trading Under the Firm Name and Style of FARMERS GIN COMPANY, Defendants.

(Filed 22 February, 1933.)

Trial F a—

Where the issues submitted are sufficient in form and substance to present all phases of the controversy to the jury an exception thereto will not be sustained.

Civil action, before McElroy, J., at Spring Term, 1932, of Cleveland.

Tbe plaintiff instituted suit against tbe defendants to recover tbe sum of $1,442.74, paid through error and mistake, in settlement for sixteen bales of cotton. Tbe defendant denied that any error bad occurred in tbe payment for sixteen bales of cotton. Both parties offered evidence tending to support their respective theories.

Tbe following issues were submitted to tbe jury:

(1) “Did tbe defendants on 15 October, 1929, deliver to tbe plaintiff tbe sixteen bales of cotton which are in controversy in this action ?”

(2) What amount, if any, is tbe plaintiff entitled to recover of defendants ?”

Tbe jury answered tbe first issue “No,” and tbe second issue “$1,442.74.”

From judgment upon tbe verdict tbe defendants appealed.

Ryburn & Hoey for plaintiff.

B. T. Falls for defendants.

Pee Curiam.

Tbe defendants contended that tbe controversy should have been solved by an issue of indebtedness, and that tbe submission of the first issue deprived them of certain elements of defense.

Issues arise upon tbe pleadings and “it has been held by this Court that where issues submitted by tbe court to tbe jury are sufficient in form and substance to present all phases of tbe controversy between tbe parties, there is no ground for exception to tbe same. ... A new trial will not ordinarily be granted by this Court where it appears that tbe issues submitted to tbe jury presented for their determination tbe essential questions in controversy, although other questions not determinative of liability are also included in tbe issues.” Bank v. Bank, 197 N. C., 526, 150 S. E., 34.

An examination of tbe record and briefs of counsel discloses conflicting evidence upon disputed issues of fact. A verdict for either party *773would have been supported by tbe evidence introduced at tbe trial. No error of law in tbe admission of testimony or tbe instructions of tbe trial judge is apparent as we interpret tbe record, bence tbe verdict and judgment tbereon are determinative.

Affirmed.