Plaintiff and defendant are each corporations, the former of New York and the latter of this State. Plaintiff brought this action оn account for “goods, wares and merchandise” sold by it to dеfendant, amounting in value to $1,160.40. Defendant’s answer set up a cоunter claim in the total sum of $1,-900. At the trial “defendant, in open cоurt, admitted that plaintiff was entitled to judgment for the amount sued for in thе petition.” The trial then proceeded on the counter-claim and resulted in a verdict for plaintiff for the accоunt and against the defendant on the counterclaim.
The cоurt instructed the jury to find for plaintiff for the amount sued for, naming the sum, and interest, naming the amount, making a total which the court stated- to be $1,277.40. This instruction is objected to on the ground that the court should havе simply directed a finding for plaintiff and left the jury to fix the amount. We are cited to a class of cases where the Supremе Court and this Court have decided that the trial court must not direct the jury as to the amount they shall find, nor calculate the interest for the jury and direct them to find that sum. [Cates v. Nickell,
But those cases are not applicable; for here the admission of the dеfendant left no issue on the amount and was a consent that judgment should be fоr a certain sum, and the court, if there had been no countеrclaim involved, could have discharged the jury and ren
Defendant states here that “the entire contrоversy between the parties is with respect to the defeсtive crank shaft”; and, in this connection, objection is made to that portion of plaintiff’s instruction No. 8 which directed the jury that before they could find for defendant on its counterclaim the amount paid to plaintiff for the crank shaft, they must find that defendant fully complied in all respects with its contract for the sale of the crank shaft. The criticism is that the instruction is without support from the evidence, for the reason that the only contract on defendant’s part was to pay for the shaft, and that, it Avas cоnceded, had been done. That the only other contract on defendant’s part which had been mentioned in the trial was сontained in the terms of the invoice made out by plaintiff, which had been excluded by the court. A consideration of the criticism has satisfied us that the part of the instruction objected to сould not have, in any way, affected the result, and was therefоre altogether harmless. We do not see how it could have influenced the jury against defendant. Especially must this be true in view of the fact that defendant asked and obtained from the court two instructions setting forth, in detail, what the contract was on the рart of both plaintiff and defendant, and in one of them informed the jury of what defendant was not required to do in order to maintain thе counterclaim. Instructions, thus bearing upon the same part of a case, should be read as a whole, and if in that way the lаw is correctly declared, there is no error. [Chambers v. Chester, 172 M’o. 461; Norton v. Kramer,