#### MID-CONTINENT REFRIGERATOR COMPANY, a Corporation, v. S. E. DAVENPORT, Trading as LAKE PHELPS GROCERY.

(Filed 21 September, 1955.)

Appeal and Error § 38—

Where the Supreme Court is evenly divided in opinion, the judgment of the lower court will be affirmed without becoming a precedent.

Appeal by plaintiff from Nimocks, J., and a jury, at January Term, 1955, OÍ WASHINGTON.

Civil action to recover balance alleged to be due on a conditional sale contract executed by the defendant in purchasing a refrigerator.

The jury, in response to issues submitted on the defendant’s cross-demand pleaded as a set-off, returned a verdict in favor of the defendant, finding that he was entitled to the set-off as claimed. From judgment entered on the verdict, decreeing that the plaintiff recover nothing of the defendant, the plaintiff appealed.

W. L. Whitley for plaintiff, appellant.

No counsel contra.

Pee Cueiam.

Two members of the Court, Winborne and Higgins, JJ., not sitting, but with Devin, Emergency Justice, participating in lieu of Winborne, J., and the six sitting members being evenly divided in opinion whether prejudicial error has been shown, the judgment of the Superior Court is affirmed, without becoming a precedent. Allen v. Insurance Co., 211 N.C. 736, 190 S.E. 735.

Affirmed.