#### Burley Tobacco Company v. Young.

(Decided May 7, 1918.)

Appeal from Boone Circuit Court.

Evidence. — Evidence examined and found to support verdict.

D. E. CASTLEMAN and ALLEN *&*DUNCAN for appellant.

S. W. TOLIN for appellee

Opinion op the Court by

Judge Carroll

Affirming.

The Burley Tobacco Company sued Young for $360.00 alleged to be due as tbe rent of a tobacco barn for tlio years 1913 and 1914. In bis answer, Young admitted renting tbe premises, and tbat tbe amount of rent sued for was correct, but denied that be owed any part of it because, as be alleged, be bad suffered damages in th© sum of $705.00 on account of an alleged breach of warranty by tbe Burley Tobacco Company growing out of tbis state of facts: He averred tbat there was attached to and part of tbe tobacco warehouse, at tbe time be first rented it in 1912 a scales used for tbe weighing of tobacco; tbat tbe Burley Company assured him tbat tbe scales were in good order and warranted to weigh all drafts correctly; tbat it knew be was renting tbe warehouse for tbe purpose of buying tobacco from farmers who were hauling it to tbe warehouse to be weighed, and tbat it was essential tbat tbe scales should weigh correctly; tbat be bought from farmers, and weighed on these scales, about 140,000 pounds of tobacco believing tbat tbe scales would weigh correctly and paid tbe farmers for tbe tobacco according to tbe weights registered by tbat scales; but afterwards, when be sold tbe tobacco^ so bought and weighed and paid for, be discovered tbat tbe scales weighed too heavy and tbat be bad paid for about 50 pounds more in each 1,000 pounds than be actually got; and so without disputing tbe claim for rent, be asserted bis claim for damages on account of tbe breach of warranty as a counter-claim, and asked judgment over against tbe company for $345.00.

On a trial of tbe case, before a jury,'there was a verdict in favor of Young, on bis counter-claim, for $220.00, and from tbe judgment on tbis verdict, this appeal is prosecuted.

*465There was no demurrer to the pleading asserting the counter-claim as it stated a good cause of action. There was no exception or objection saved to any of the evidence offered. There was no motion for a peremptory instruction, nor was or is any complaint made of the instructions. It will, therefore, be seen that the only question in the case is, was there any evidence to support the verdict or was it so flagrantly against the evidence as to indicate that the finding was the result of passion or prejudice on the part of the jury? On the facts, the case is a very simple one: Young introduced evidence tending to support his theory of the case, and the Burley Company introduced evidence tending, to support its theory. Under the evidence the jury might have found for either of the parties, and the finding could not be said to be unsupported by or flagrantly against the evidence. It is suggested that the assertion of this counter-claim by Young was an afterthought on his part, for the purpose of defeating the rent claim, admitted by him to be just, and it looks like there is some ground for this suggestion, but this was a matter for the jury.

We do not find, in the record, any error that would authorize us to disturb the judgment, and it is affirmed.