
    KOLB COAL COMPANY, PLAINTIFF, v. FRANCIS H. McCAULEY, DEFENDANT.
    Argued October 9, 1924
    Decided February 26, 1925.
    Contracts' — Action on Note — Counter-claim—Judgment for Defendant. on Both Note and Counter-claim Clearly Against Weight of Evidence — Venire De Novo Issued.
    
      On rule to■ show cause.
    
      9
    
    Before Justices Kalisch, Black and Campbell.
    Pot the rule, Jolm M. Enright and Shelton Pitney.
    
    
      Contra, John Milton.
    
   Pee Cueiam.

The action was brought seeking recovery upon a demand note of $15,000, and interest, dated April 24th, 1922, made by the defendant to the plaintiff.

Defendant answered denying liability upon the note, and asserting that it was without consideration and given solely for the accommodation of the plaintiff. The defendant also counter-claimed for certain alleged services to> the plaintiff in and about the rebate, &c., of the federal income taxes of the plaintiff for the years 1917, 1918, 1919 and 1920.

The trial of the issue at Circuit resulted in a verdict against the plaintiff upon its cause of action upon the note; and. also against the plaintiff and in favor of the defendant upon the counter-claim in the sum of $15,291.78, upon which judgment has been entered.

Under the rule to show cause nine reasons for setting aside the judgment were filed; three of them are relied upon and argued.

It is necessary, however, for us to pass upon the question only as to whether the verdict in favor of the defendant and against the plaintiff upon plaintiff’s cause of action, namely, the note of $15,000, and the verdict against the plaintiff and in favor of the defendant upon his counter-claim are against the weight of the evidence.

In doing so we deem it entirely unnecessary to state the details of the transactions involved in the controversy, it-being entirely sufficient, in our judgment, to say that an examination of the proofe brings ns to the irresistible conclusion that the verdict upon both branches of the controversy is against the clear weight of the evidence, thus requiring the judgment and the verdict upon which it is based to be set aside, and that a venire de novo issue.

Such an order may therefore be taken and entered.  