#### C. S. LEWIS and J. M. BROWN and O. W. BROWN, Administrator of the Estate of J. M. BROWN, Deceased, Doing Business as BROWN & LEWIS, v. C. C. FRYE and C. F. GARNER, Doing Business as FRYE & GARNER.

(Filed 19 September, 1934.)

Appeal and Error L d—

Where it is determined on appeal that a cause of action is stated and that the evidence should be submitted to the jury, the question is res judicata upon a subsequent appeal upon substantially similar evidence.

Sci-ienck, J., toot no part in the consideration or decision of this case.

Civil action, before Stack, J., at September Term, 1933, of Mooke.

This action was originally tried in the Superior Court and nonsuited, as will appear by reference to Lewis v. Archbell, 199 N. C., 205, 154 *853 S. E., 11, where the facts are set forth. The evidence in the present case was substantially similar to that adduced at the former hearing.

The trial judge submitted certain pertinent issues to the jury, and these were answered in favor of the plaintiffs. The verdict awarded to the plaintiffs the sum of $600.00 actual damages, and from judgment upon the verdict for treble damages for the sum of $1,800 the defendants appealed.

H. F. Seawell, Jr., and M. G. Boyette for plaintiffs.

L. B. Clegg, J. E. Scott, and W. B. Clegg for defendants.

Pbb Curiam.

When this cause was considered by the Court upon a former appeal in Lewis v. Archbell, 199 N. C., 205, it was held that a cause of action was alleged and that the case “should be submitted to a jury with proper instructions from the court.” The evidence in the present case was substantially similar to that adduced at the former hearing. An examination of the exceptions relating to the competency of certain evidence discloses no reversible error. The contentions of the parties were fairly arrayed by the trial judge and the jury correctly instructed as to the rules of law governing liability. Indeed, the record presents a sharply controverted issue of fact, which the jury has determined.

Affirmed.

ScheNCK, J., took no part in the consideration or decision of this case.