I concur in the judgment, for the reason that while, technically, the original trial resulted in a mistrial, in that the verdict of the jury determined but one of the two issues submitted to it, the trial court, without objection from either party, approved the verdict as to which the finding was definite and certain, and subsequently submitted to another jury the issue theretofore left undetermined respecting the cost of the extraction of the ore in question in the case, the amount of which cost the respective parties expressly stipulated on the trial before the second jury.
I am therefore unable to see that the plaintiff in error was deprived of a jury trial upon either of the issues, or how it could have been injured by the irregular course pursued by the court below.