#### J. MARVIN ROCHELLE v. J. F. DUNN.

(Filed 20 November, 1935.)

Appeal by defendant from *GraSy, J.,*at June Term, 1935, of LeNoie.

No error.

This is an action to recover of the defendant damages for the breach of his contract to sell and convey to the plaintiff certain real and personal property, described in the contract, which is in writing.

*854On 8 November, 1934, tbe defendant entered into a contract witb tbe plaintiff by wbicb be agreed to sell and convey to tbe plaintiff, or to sucb person or persons as tbe plaintiff might direct, certain real and personal property described in tbe contract, provided tbe plaintiff, on or before 18 November, 1934, should exercise bis option to purchase said property and pay tbe purchase price for tbe same.

Thereafter, on or about 12 November, 1934, at tbe request of tbe plaintiff, tbe defendant agreed to extend tbe time within wbicb tbe plaintiff might exercise bis option to purchase said property, and pay said purchase price.

Tbe plaintiff alleges that tbe defendant agreed to extend sucb time to 28 November, 1934, and authorized plaintiff to change tbe contract accordingly. This allegation is denied by tbe defendant, who alleges that be agreed to extend sucb time only to 24 November, 1934.

Tbe date on or before wbicb tbe plaintiff was required to exercise bis option and to pay tbe purchase price, as shown in tbe contract offered in evidence, is 28 November, 1934.

Tbe issues submitted to tbe jury were answered as follows:

“1. Did tbe defendant J. F. Dunn authorize tbe plaintiff J. Marvin Rochelle to change tbe expiration date of tbe option contract referred to in tbe pleadings from 18 November, 1934, to 28 November, 1934, as alleged by tbe plaintiff? Answer: ‘Yes.’

“2. If so, did tbe plaintiff comply witb tbe terms of tbe said contract, and make payment, or offer to make payment, to tbe defendant of tbe sum of $4,200, as stipulated therein? Answer: ‘Yes.’

“3. If so, did tbe defendant fail and refuse to accept said payment and to comply witb tbe terms of said contract, as alleged in tbe complaint ? Answer: ‘Yes.’

“4. If so, what damages, if any, is tbe plaintiff entitled to recover of tbe defendant by reason of sucb breach of contract ? Answer: ‘$1,000.’ ”

From judgment that plaintiff recover of tbe defendant tbe sum of $1,000, and tbe costs of tbe action, tbe defendant appealed to tbe Supreme Court, assigning errors, as appear in tbe record.

*John G. Dawson for plaintiff.*

*Shaw & J ones for defendant.*

Pee, Cueiam.

*We*find no error in tbe trial of this action.

Tbe chief controversy between tbe parties was witb respect to tbe first issue. There was evidence tending to support plaintiff’s contentions witb respect to tbe answer to this issue. All tbe evidence showed that plaintiff complied witb tbe contract, as found by tbe jury, and that *855■defendant breached the contract, as alleged in tbe complaint. There was evidence tending to show that the market value of the property at the time of the breach of the contract by the defendant exceeded the contract price by at least the sum of $1,000.

The judgment is affirmed.

No error.

DeviN, J., took no part in the consideration or decision of this case.