Opinion by
Head, J.,
The plaintiff based his right to recover on the allega*595tion of fact that the defendant, in the construction of a building on its own property, had made use of the party wall erected on the line dividing the two properties. The defendant, raising no legal question as to the plaintiff’s right to recover, if the facts were as he stated, rested its defense on the counter statement of fact that it had made no use of the party wall. The main issue between the parties was therefore clearly one of fact. This question of fact was submitted by the learned trial judge in a charge so plain and impartial that it furnished no ground for complaint to either party. The jury resolved the issue of fact in favor of the plaintiff and awarded him a verdict. Manifestly, under these circumstances, no binding direction could have been given by the learned trial judge, and the first assignment of error may be dismissed without further comment. The third, fourth and fifth assignments complain of the refusal of the learned court below to award a new trial. There is nothing in the record of this case to place it in that extremely unusual class where the refusal to grant a new trial may be properly assigned for error. These assignments are dismissed.
The defendant, in addition to its defense of fact, advanced a counterclaim based on the assertion that the party wall, which had been theretofore constructed by the plaintiff, had been so carelessly built that it was no longer perpendicular, but at the top sagged or leaned over the property line to the extent of two or three inches, and that it was thereby damaged in the sum of $1,000. This sum it sought to set off against anything recovered by the plaintiff and asked for a certificate of balance in its favor. There was considerable conflict in the evidence on both propositions, but it is clear there was not a scintilla of evidence offered by the defendant tending to show that it had suffered any actual damages, or that would have enabled the court or jury to adopt any measure of the alleged damages. No refusal on the part of the trial judge to admit such testimony *596is assigned for error. As the record stood and now stands, the trial judge was right in refusing to affirm the defendant’s fourth point, the subject of the second assignment of error, and it also is overruled.
Judgment affirmed.