
    TRIAL
    [Cuyahoga (8th) Circuit Court,
    June 2, 1911.]
    Marvin, Winch, and Henry, JJ.
    E. E. Stoneman v. Ohio Cultivator Co.
    Verdict Erroneously Directed Against Defendant on Counterclaim for Nominal Damages Not Prejudicial.
    A verdict was erroneously directed against a defendant on a counterclaim under which he had shown himself entitled to nominal damages only; Held: No prejudice arose therefrom because it affected the question of costs only, and the costs were properly assessed against: the defendant on the plaintiff’s claim, set up in the petition.
    Error.
    
      Frank C. Scott, for plaintiff in error.
    
      Hidy, Klein & Harris, for defendant in error.
   WINCH, J.

Stoneman bought a hay press of the cultivator company, and gave his note for $150 in part payment thereof. He after-wards sold the hay press to one Kerruish, but as under agreement with the cultivator company, title to the hay press was to remain in it until the entire purchase price was paid, he asked and obtained the cultivator company’s consent to a transfer of title of the hay press to Kerruish, who gave his own notes for $338.40 secured by a chattel mortgage covering the hay press, direct to the cultivator company. Stoneman claims the company agreed to accept Kerruish’s note in payment of his note, and to release him, but this is denied by the company. Kerruish failed to pay his notes when due, and the company thereupon sued Stoneman on his $150 note.

Stoneman answered, admitting the note, but setting up the transaction with Kerruish as a defense thereto. He also set up in his answer two counterclaims, one asking damage for the company’s negligence in prosecuting a suit against Kerruish for replevin of the hay press, and the other praying compensation for his services in locating the mortgaged property and attempting to save its possession. A reply denied these allegations. Tbe issues were tried to a jury, and at tbe close of all tbe evidence, a verdict was directed for the plaintiff for tbe amount due on Stoneman’s note.

This action of tbe court was proper, so far as tbe evidence of Stoneman as to the Kerruish transaction was concerned. He failed to show that tbe Kerruish notes were taken in payment of bis note. On tbe contrary, be proved that tbe Kerruish notes and chattel mortgage were taken as collateral security to bis note.

It seems, however, that he made out a case on tbe first counterclaim, entitling him to nominal damages for tbe company’s negligence in and about tbe collections of tbe Kerruish notes. Roberts v. Thompson, 14 Ohio St. 1.

He might have been entitled to more than nominal damages if be bad shown that tbe bay press was of any value or that Kerruish was insolvent. It may be that Stoneman can not collect tbe Kerruish notes, a surrender of which be is entitled to upon payment of bis own note.

Though there was error in directing a verdict for tbe plaintiff below, it was not prejudicial to plaintiff in error.

Being entitled to nominal damages only on bis counterclaim, a submission of it to tbe jury would not have changed tbe result of tbe ease, for costs would go against him in either event.

Certain rulings on evidence have been called to our attention, which seems to have been erroneous, but as they all referred to tbe issue on tbe counterclaim, and did not affect tbe amount of damages thereunder, no prejudice arose therefrom.

Judgment affirmed.

Marvin and Henry, JJ., concur.  