The prayer f«r instruction requested by the defendant was substantially given in the charge.
In addition to telling the jury several times that the plaintiff was not entitled to recover anything unless he proved performance on his part, he instructed the jury as follows: “If the jury shall find from the evidence and by its greater weight that the contract was that the plaintiff should furnish plans for a house not to exceed $5,000, and the plaintiff failed to comply Avith the terms of his contract, and that while negotiations were going on and before the defendant learned that the contract would not be complied with, the plaintiff induced the defendant to advance him various sums from time to time, amounting to $200 or $225, or whatever the jury should find it to be, upon the assurance and warranty that he would comply Avith the terms of the agreement, and the plaintiff has failed to return said sums, and he failed and refused to comply -with his contract, the defendant would be entitled to recover back the sum so paid.” And again: “If you answer the first issue $370, you will not answer the second issue; but if you answer the first issue Nothing’- you will then consider the second issue. If you find that the contract was as contended by the defendant by the greater weight of the evidence, you will answer ^hat such amount as you find that he paid under these issues; but if you are not satisfied as to that, you will answer it Nothing,’ the burden being upon the defendant upon the second issue.”
The part of his Honor’s charge excepted to when the jury returned for further instructions is in tel-ling the jury in substance that it was Avithin *646the physical power of the jury to divide the amount claimed by the plaintiff and the defendant, respectively, and this, standing alone, would be erroneous, but when read in connection with the context it does not reasonably bear the construction of a direction that the jury had the right to compromise the matters in controversy.
The juror asked the presiding judge if the jury could split the amount claimed by the parties, and his Honor said, it is true, “That is within the physical power of the jury,” but he immediately followed this statement with a clear and full instruction as to the duties of the jury in considering the evidence and in determining what their answers to the issues should be.
If, however, it should be held that the charge was erroneous, it was not only not prejudicial to the defendant, but in his favor, and had the effect of reducing the claim of the plaintiff $150.
The jury could not find any amount due the plaintiff under the instructions of the court without finding that the contract was as the plaintiff elaimed.it to be, and if so he was entitled to recover $370, and the jury has reduced this sum to $220.
No error.