
    HENRY D. SMITH v. S. P. HANCOCK and THOMAS THOMAS.
    (Filed 4 October, 1916.)
    Mortgages — Foreclosure — Injunction — Partnership Profits — Verdict—Judgments.
    In a suit to restrain the foreclosure of a mortgage there was evidence in plaintiff’s behalf tending to show that the mortgage was only given to indemnify the defendant in advancing money for partnership purposes, and that the enterprise had resulted in a profit; and in defendant’s behalf that the mortgage was given to secure an additional debt owed by the plaintiff, with evidence to the contrary. Under appropriate issues and correct .instructions the jury found that the note and mortgage had been paid and that defendant was indebted to plaintiff for partnership profits: Held, the verdict established the fact that plaintiff owed defendant nothing for outside individual transactions, and judgment was properly entered in plaintiff’s favor. The principle that reversals are not granted upon slight technical errors alone discussed by Walkek, J.
    Civil actioN tried before Devin, J., and*a jury at June Term, 1916, of Cabteket.
    Tbe action was brought by plaintiff to restrain defendant from foreclosing a mortgage, given by plaintiff and wife in 1905. The plaintiff and defendant'Hancock, in June, 1905, formed a partnership for the purpose of buying, bedding, and shipping clams. Hancock was to furnish the money to be used in the business, not exceeding $500, and Smith was to give his time and work when necessary. There was evidence that Smith and wife executed a mortgage on their home for $250 to secure Hancock for half of the amount to be expended in the business. Smith received no money on the mortgage, but executed the same to secure Hancock in ease of loss, and they were to share profits, if any, and losses, if any should be sustained. There was a profit, which plaintiff alleges was $168, and he thought that the mortgage had been canceled, until some one read in his hearing a notice in a local paper that his home was advertised for sale under foreclosure. He secured an injunction to restrain the same, and now asks the court to cancel the mortgage, which he alleges was satisfied or had served its purpose, as there was no loss in the clam business, and for the payment to him by Hancock, his partner in the clam business, the sum of $84, one-half of the profit of said business.
    Smith gave his time and services and Hancock furnished the money to carry on the clam business, as set out above. There was received by Hancock, over and above all the money furnished by him, more than $168, which was profit in the business. Defendant Hancock received all the money for the sale of clams.
    The jury returned the following verdict:
    1. Have the note and mortgage described in the complaint been paid ? Answer: “Yes.”
    2. "What amount, if any, is the defendant S. P. Hancock indebted to the plaintiff? Answer: “$84.”
    
      W. R. Wheatley and Abernethy & Davis for plaintiff.
    
    
      J. F. Duncan for defendants.
    
   WalkeR, J.,

after stating the case: The principal questions in this case may be reduced to only two, the first being whether the mortgage for the $250 was executed to secure S. P. Hancock against any loss by reason of the money he advanced to run the business or whether it was intended to secure him not only against loss in the business, but also to secure tbe payment of an outside debt owing to bim by tbe plaintiff; and tbe second, wbetber, if it was given to indemnify Hancock against any loss, it bad been satisfied, or bad served its purpose, by there not being any loss in tbe business, but a profit of $168, balf of wbicb belonged to tbe plaintiff. Tbe issues were quite simple and tbe difference between tbe contentions sharply drawn. Tbe court explained tbe case fully to tbe jury, instructing them if they found tbe facts to be as stated by tbe defendant, to return a verdict for bim, answering tbe first issue “No”; but if they found tbe contrary to be true, that is, that tbe mortgage was given merely as an indemnity to S. P. Hancock against any loss in tbe business, for balf of wbicb tbe plaintiff was responsible, and there was no loss, but a gain, they should answer tbe first issue “Tes,” and award plaintiff balf of tbe profit, if any there was. It was conceded that tbe mortgage was ■ given as an indemnity, but defendant claimed that it bad been given also to secure a debt due by plaintiff to bim. This contention was fairly submitted to tbe jury. We think that, under tbe charge, tbe defendant bad tbe substantial benefit of all bis contentions. Tbe jury evidently found tbe contract to be as stated by tbe plaintiff, that tbe mortgage was given only for tbe plaintiff’s part of tbe capital advanced by Hancock wbicb should be lost in their partnership dealings, and was to be used only for that purpose. As tbe jury found that there was a profit, tbe verdict excludes tbe idea that there was anything due to tbe defendant on account of outside individual transactions between them. It appears that tbe court, in tbe charge, directed tbe attention of tbe jury specially to defendant’s contention as to tbe settlement, wbicb be says was in 1905, and wbicb plaintiff alleges was in 1908; and tbe charge, therefore, was’a sufficient response to defendant’s prayers for instructions on this phase of tbe case, so far as be was entitled to them.

We are of tbe opinion that tbe defendant has bad a fair and full bearing upon bis contentions — if not in tbe exact form of them, as stated by bim, then in substance and legal effect. Reversals are not granted merely for tbe slightest technical error, which a precise or exhaustive analysis of tbe charge might disclose, if there is no prejudice or injustice done; but tbe appellant has bad a fair submission to tbe jury of tbe real issues, both upon tbe law and tbe evidence, and tbe determinative facts have been found against bim. Verdicts and judgments should not be lightly set aside upon grounds wbicb show tbe alleged error to' be harmless or where tbe appellant could have sustained no injury from it. There should be at least something like a practical treatment of tbe motion to reverse, and it should not be granted except to subserve tbe real ends of substantial justice. Hilliard on New Trials (2 Ed.), sees. 1 to 7. “Tbe motion should be meritorious and not frivolous.” S. v. Smith, 164 N. C., 475-480. As that case shows, tbe courts have said that tbe foundation of tbe motion for a new trial is tbe allegation of injustice, and tbe prayer is for relief. Unless, therefore, some wrong bas been suffered, there is nothing to be relieved against. Tbe injury must be positive and tangible, not theoretical merely. For instance, tbe simple fact of defeat is, in one sense, injurious, for it wounds tbe feelings, and may compel a surrender of property; but this alone is not sufficient ground for a new trial, although there may not have been strict regularity. Tbe complaining party asks for redress, for tbe restoration of rights which have first been infringed and then taken away. There must be, then, a probability of repairing the legal injury, otherwise the. interference of the court would be but nugatory. There must be a reasonable prospect of placing the party who asks for a new trial in a better position than the one which he occupies by the verdict. If he obtains a new trial, he must incur additional expense; and if there is no corresponding benefit, he is still the sufferer. Besides, courts are instituted to enforce right and restrain and punish wrong. Their time is too valuable for them to interpose their remedial power idly and to no purpose.. They will only interfere, therefore, where there is a prospect of ultimate benefit. 3 Graham and Waterman on New Trials, p. 1235; S. v. Smith, supra; S. v. Heavener, 168 N. C., 156; Ferebee v. Berry, ibid., 281; Brogden v. Gibson, 165 N. C., 16; Steeley v. Lumber Co., 165 N. C., 27. What all this means is that there must be real and substantial harm done by the alleged error — not that we will merely guess at the probable effect of it upon the result, but that if we can clearly and surely perceive that it has not affected the result, it would be vain to be influenced by it and allow it to vitiate the judgment. But there was not even theoretical error in the trial of the case. The position of defendant as to the settlement, and the credit of the mortgage on the amount found to be due, was fairly submitted to the jury, and they had the whole matter before them, and the verdict is inconsistent with the defendant’s view of the case.

The defendant’s counsel ably presented his contentions, but upon a careful review of the record we conclude that there was no reversible error in any of the rulings of the court.

The defendant in this case had ample opportunity to make good his contention, but failed to convince the jury of its validity.

No error.  