
    A. W. McCONN v. J. T. LYELL AND OTHERS.
    
    December 30, 1938.
    No. 31,811.
    
      Christian C. Dosland, for appellant.
    
      James A. Carrity, for respondent.
    
      
       Reported in 283 N. W. 112.
    
   Stone, Justice.

After verdict for the plaintiff, defendant appeals from the order denying his motion for a new trial.

The action is for the agreed price of a large quantity of “1986 mix” potato bug poison. Defendant admits sale and delivery to him, but by way both of defense and counterclaim avers a warranty of quality, a breach thereof, and resulting damage.

The parties agree that the “1986 mix” was the stuff sold. Defendant’s claim is that a considerable quantity of the goods delivered to him was “1935 mix,” substantially inferior in lethal effect on potato bugs to the “1936 mix.” There was a ruling which prevented defendant from introducing any evidence in support of his counterclaim. But he was permitted to litigate fully, by way of attempted recoupment, his claim for breach of warranty.

Inasmuch as upon the basic and determinative issue the jury found for plaintiff, any error there was in respect to defendant’s counterclaim was without prejudice to him. Plaintiff’s evidence was that all the poison delivered to defendant was “1936 mix.” Defendant’s testimony was that a substantial part of it was the inferior 1935 variety. That issue, which could not have been litigated more fully under the counterclaim, the jury resolved for plaintiff. There is no reason why it should be retried.

On this point the case is parallel to Gordon v. Freeman, 112 Minn. 482, 485, 128 N. W. 834, 836, 1118, where at the trial certain claims “for additional damages” were stricken from the complaint. We held that because the jury had found the underlying issue for defendant it was not even “necessary to discuss the propriety” of the rilling eliminating plaintiff’s claim.

Because the verdict shows that any error committed was harmless, the order is affirmed.  