(after stating the facts.) 'The only error assigned in the argument, in this Court, is in the judgment, rendered for .the full amount of the counter-claim, and in disregard of the debt due the plaintiffs upon the undisputed note, the original cause of action. It is suggested for the appellee, that the amount due the plaintiffs was deducted bv the jury from the damages ascertained, and that the sum found in response to that issue, is the excess of the damages. The counsel do not agree, that the jury acted upon any such instruction, and as it was not appropriate to the inquiry in which the response was returned, it does not find any countenance in the record.
We must be governed entirely by the latter. There was no controversy about the note, and the sole issue, assuming the defendant, upon the other findings, to be entitled to damages, was, “What damages has defendant Hall sustained?”
The case is a simple one. The plaintiffs’ demand is admitted, the damage sustained by reason of the violations of the terms of the contract of lease, on the part of the plaintiffs, are assessed at $4,196t6^-, a sum slightly above the estimate made by the referee of the defendant’s expenditures.
The latter must be reduced by the lesser sum, and judgment rendered in favor of defendant for what remains.
The appeal vacates the judgment, and there being error in it, this Court will proceed to “render such sentence, judgment and decree as on inspection of the whole record it shall appear to them, ought, in law, to be rendered thereon.” The Code, §957.
*85Judgment, thus modified, will be entered for the defendant. The plaintiffs will pay the costs of the appeal to this Court, and the defendant, the costs incurred in the Court below, as there adjudged.
Error. Modified.