In the plaintiff in error's petition for rehearing it is claimed that Commissioner Galbraith overlooked his second assignment of error, to wit: "That the evidence of the defendant in error was insufficient to counterclaim for breach of warranty if it could be said there were such warranties as alleged;" the force of this assignment being that it was the duty of the trial court to instruct a verdict for plaintiff in error. The defendant in error pleaded that there was a breach of warranty in reference to the quality of the property, to wit, a silo by him purchased, and introduced evidence tending to show that, after the silo was erected by plaintiff in error, it had to be tied up by four wires and anchored to keep it from falling down; that it dried up and cracks came in it; that there was 1 1/2 pounds creosote used when the guaranty called for 4 1/2 pounds; and that the bottom of the silo was rotten. We believe that it was proper for this evidence to go to the jury in order to throw some light on the question as to the value of the silo actually received by defendant in error. The court is justified in instructing a verdict when there is a total lack of evidence on one side of a controversy or when all the evidence offered and all reasonable inferences to be drawn therefrom are of such a character that all reasonable men must reach the same conclusion.
We find that the trial court properly submitted all issues to the jury, and that the opinion of the Commissioner reached the correct conclusion. We adhere to that conclusion; therefore the judgment of the trial court is affirmed.
OWEN, C. J., and SHARP, PITCHFORD, and McNEILL, JJ., concur.