
    No. 435
    McKERCHER, Exr. v. LUMBER CO.
    No. 19753.
    Supreme Court
    On motion to certify.
    Dock. April 5, 1926.
    677. JUDGMENTS — In an action on an account, where the defendant files a counter claim, may the court render judgment against both parties on their claims and thereby non-suit both, or should the court render judgment for the plaintiff and then off set against the judgment any damages proved under the counter-claim?
    Attorneys — Sanders, Monahen & Sanders, Cleveland, for Executors; Thompson, Hiñe & Flory, Cleveland, for Company.
   This suit was brought originally in the Cleveland Municipal Court by J. A. McKercher and G. F. Chapman, as executors and trustees of the Estate of Joseph Stephen Deschamps, Rossland, British Columbia, Canada, against The John C. King Lumber Co. on an account for lumber sold.

The amount sued for was $1,152.03 and the Lumber Co. by way of counter claim set up a breach of contract for ten cars of lumber, alleging that only six had been delivered, thereby damaging it $1,577.48.

The Municipal Court rendered judgment against the plaintiffs on their claim and against the defendant on its counterclaim and in effect non suited both parties.

The judgment was affirmed by the Appeals of Cuyahoga County, which stated that it could not say with certainty that the court had not balanced one claim owing against the other.

The plaintiffs here contend that the Municipal Court could not have balanced one claim against the other because it found against the defendant.  