#### LULA JOHNSON, Admx., et al., v. J. BUREN SIDBURY, Admr.

(Filed 8 May, 1946.)

Appeal and Error § 6a — When cause is tried upon theory insisted upon by defendant he may not complain of the result.

In this action for specific performance and for damages for tortuous eviction, plaintiff obtained judgment by default and inquiry. Answer was filed pending decision on appeal reversing judgment setting aside the default judgment. At the execution of the inquiry plaintiff waived the cause on contract. Defendant persisted in trying the matter on the complaint and answer, and offered evidence to sustain his position under the *346contract. Under instructions from the court, damages were awarded as for breach of contract. *Held:*Conceding the measure of damages was in excess of the scope of the inquiry, having invited the court to entertain his answer and evidence, defendant is in no position to complain.

Barnhill, J., concurring.

Appeal by defendant from *Williams, J.,*at December Term, 1945, of New HaNovek.

Civil action for specific performance and damages for tortuous eviction.

Summons was issued 12 June, 1944, and complaint filed simultaneously therewith. It is alleged that on 18 December, 1933, V. Sidbury sold to George Johnson house and lot, known as the Streeter Place, and executed bond for title; that all payments were duly made thereunder and the full purchase price tendered in accordance with the terms of the contract, but no deed was delivered because, in the meantime, Y. Sidbury had wrongfully conveyed the property to his son, K. C. Sidbury; that the said K. C. Sidbury, as agent of his father, tortuously and wrongfully evicted the said George Johnson from the premises to his great injury and damage. Wherefore plaintiffs asked for damages and for execution of deed to the land in question.

On 14 July, 1944, no answer having been filed by the defendant, and it “appearing to the court that this is an action in tort for recovery of damages for breach of contract and resultant damages to real property,” judgment by default and inquiry was entered, and the inquiry ordered to be executed at the next succeeding term of court.

Motion to set aside this default judgment for excusable neglect was allowed and subsequently reversed on appeal. 225 N. 0., 208, 34 S. E. (2d), 67.

On 3 January, 1945, the defendant filed answer and denied the material allegations of the complaint.

Execution of the inquiry came on for hearing at the December Term, 1045, New Hanover Superior Court, and resulted in award of damages to the plaintiff in the amount of $1,725.00.

From judgment thereon, the defendant appeals, assigning errors.

*Rodgers ■& Rodgers and J. H. Ferguson for plaintiffs, appellees.*

*Glayton C. Holmes and Garr, James & Garr for defendant, appellant.*

Stacy, C. J.

The execution of the present inquiry seems to have been on the complaint and answer, and plaintiff was allowed to recover the difference between the purchase price of the land as fixed in the bond for title and its reasonable market value, at the time of the breach, less *347tbe sum “clue and owing upon tbe contract,” plus “sucb sum as you (jury) find necessary to fully compensate tbe plaintiff for any injury sustained by him, directly flowing from, and proximately caused by, tbe wrongful act of tbe defendant.” See *Troitino v. Goodman,*225 N. C., 406, 35 S. E. (2d), 277; 27 R. C. L., 619 and 631.

If it be conceded that tbe measure of damages, as thus stated, was in excess of tbe scope of tbe inquiry as fixed by tbe default judgment, *DeHoff v. Black,*206 N. C., 687, 175 S. E., 179, it is not perceived wherein tbe defendant can complain, if tbe judgment is to be considered a final disposition of tbe whole matter. Tbe case was tried on tbe pleadings, and largely upon tbe defendant’s evidence. Having thus invited tbe court to entertain bis answer and evidence in support thereof, tbe defendant is hardly in position to quarrel with tbe result. *Buie v. Buie,*24 N. C., 87. Tbe theory and scope of tbe inquiry was advanced by tbe defendant, and tbe jury apparently accepted bis figures in arriving at tbe amount of damages.

It is true tbe plaintiff stated on tbe bearing that be would waive bis cause of action on contract and proceed in tort (52 Am. Jur., 380, sec. 27) — consistent with tbe execution of tbe inquiry under tbe default judgment — but tbe defendant thereafter persisted in trying tbe matter on tbe complaint and answer and offered evidence to sustain bis position under tbe contract. If this were error, it seems to have been invited by tbe defendant. *Carruthers v. R. R.,*218 N. C., 377, 11 S. E. (2d), 157; *Kelly v. Traction Co.,*132 N. C., 368, 43 S. E., 923.

On tbe record, as presented, we are disposed to uphold tbe judgment.

No error.

Barnhill, J.,

concurring: Tbe cause was submitted to tbe jury on tbe issue of damages only. When plaintiffs rested defendants -offered evidence in rebuttal. This testimony is to tbe effect that tbe reasonable market value of tbe property was $2,500 and that there is due on tbe contract “$600 or $700.” Tbe jury accepted their theory of tbe case and their testimony as to tbe facts and returned verdict for $1,725.

It follows that tbe errors committed in tbe admission of testimony and in tbe charge of tbe court failed to barm defendants or to prejudice their defense. Since tbe verdict does not exceed tbe amount they have shown to be due they have no just cause for complaint.