Irvin v. Jenkins

*754 Stacy, J.

Upon warmly contested issues of fact, the jury returned a verdict on the second cause of action in favor of the defendant. A careful perusal of the • record leaves us with the impression that the case, as it relates to this cause of action, has been tried substantially in accordance with the law bearing on the subject. Hence, the verdict and judgment in this respect will be upheld.

We are of opinion, however, that a new trial should be awarded on the first cause of action. At the hearing, the contest waged almost entirely around the first and second issues; but under the principle announced in Printing Co. v. McAden, 131 N. C., 178 ;

Ins. Co. v. Box Co., 185 N. C., 543 ;

Gilmer v. Hanks, 84 N. C., p. 320, and other cases to like import, it would seem that the remaining issues were material and sufficiently determinative.

Perebee v. Gordon, 35 N. C., 350 ;

Tarault v. Seif, 158 N. C., 363 , and cases there cited. Nevertheless as these issues, on the trial, were regarded as only evidentiary to the main question in dispute, and especially in view of the wording of the seventh issue, we have concluded to award a new trial on the first cause of action rather than direct that judgment be entered on this part of the verdict for the plaintiff.

The judgment for the defendant on the second cause of action will remain undisturbed, and the cause will be remanded for a new trial on the first cause of action.

Partial new trial.