Tire & Rubber Co. v. Motor Co.

Stacy, J. There was ample evidence tending to support the defendant’s counterclaim, and we think the issues raised thereby must be answered before any final judgment can be entered in the cause. We are not at liberty to say that the jury intended to answer the issues against the defendant, because they did not answer them at all; nor do we think the answer to the first issue a necessary denial, by implication, of defendant’s counterclaim. It is true, the jury evidently accepted plaintiff’s contention as to the correct balance due for the tires sold and delivered to the defendant; but upon the question as to whether there was any breach of the contract, as alleged, and a refusal to ship other tires, which resulted in loss to the defendant, the verdict is silent. In the case of McKenzie v. McKenzie, 153 N. C., 242, the following expression was used in speaking of a similar point raised on that appeal: “The material issues of fact raised by the pleadings should be submitted to the jury, and, of course, answered by them. Davidson v. Gifford, 100 N. C., 18. And the issues, with the responses thereto, must be sufficient to support the judgment and dispose of the matters in controversy.” Falkner v. Pilcher, 137 N. C., 449. As suggested in Wilson v. R. R., 165 N. C., 499, we think his Honor should have sent the jury back with directions to answer the remaining issues before receiving the verdict. • Had there been no evidence to support the counterclaim it might have been disregarded, but in the present state of the record the defendant’s motion to set aside the partial verdict, as rendered, should have been allowed. New trial.