
    J. B. HARVEY v. W. H. HUGHES.
    (Filed 10 October, 1923.)
    Evidence — Questions for Jury.
    In this action to recover upon a note given for balance of a stock of goods: Held,, upon establishing the defense of fraud, the question was for the jury, and the judgment below adjusting the relative claims of the parties, as to the cash payment and the evidently increased value of the merchandise from date of purchase, was a proper one.
    Appeal by plaintiff from Calvert, J., at chambers in Kinston, 19 June, 1923. From Chaven.
    Civil action, arising out of contract. Defense interposed’upon tbe ground of a breach of warranty in connection with tbe value of tbe stock sold by plaintiff to defendant, and for which tbe note in suit was given.
    Tbe jury returned tbe following verdict:
    “1. What is tbe amount of tbe note sued on? Answer: '$5,800 and interest from 21 May, 1920.’
    “2. Did the plaintiff represent and warrant to tbe defendant tbat tbe $6,800 in stock sold tbe defendant was worth pmr at tbe time of tbe sale to tbe defendant?' Answer: 'Yes.’
    
      “3. If so, what was tbe actual value of tbe stock at tbe time of tbe sale? Answer: 'Nothing.’
    ''4. What damage is defendant entitled to recover of tbe plaintiffs for breach of said warranty? Answer: 'Return note of $5,800.’
    “5. What damage, if any, is defendant entitled to recover of tbe plaintiff by way of counterclaim? Answer: 'None.’”
    Judgment for defendant and a further order tbat tbe defendant surrender tbe stock in question to tbe plaintiff upon tbe payment by bim of $1,000, tbis being tbe amount received by plaintiff over and above tbe note given at tbe time of sale of said stock. Plaintiff appealed.
    
      
      Moore & Dunn for plaintiff.
    
    
      Ward & Ward for defendant.
    
   Stacy, J.

In March, 1920, plaintiff sold to the defendant 68 shares of the capital stock of the Craven Tobacco Company at and for the price of $100 per share. Defendant paid $1,000 in cash and executed his note to the plaintiff for $5,800, representing the balance due on the purchase price of said stock. This suit is to recover on the note. Defendant denies liability on the ground of an alleged breach of warranty in connection with the value of said stock; and he seeks to recover, by way of counterclaim,, the $1,000 paid at the time of sale. The fifth issue is addressed to the counterclaim.

The controversy on trial narrowed itself principally to questions of fact, which the jury alone could determine. A careful perusal of the record leaves us with the impression that the case has been tried in substantial conformity to the law bearing on the subject, and we have found no sufficient reason, upon the exceptions presented, for disturbing the verdict.

The value of the stock at the time of trial evidently was greater than it was at the time of sale, or else a different verdict would have been rendered. But however this may be, his Honor has given the plaintiff an opportunity to redeem the stock by returning the cash payment of $1,000. Otherwise, under the verdict and judgment, the plaintiff' is entitled to keep the cash payment, and the defendant is entitled to retain the stock. This, as we understand it, is the correct interpretation of the verdict and judgment.

The record presents no reversible error, and hence the judgment below must be upheld.

No error.  