#### BEN R. LOWE and Wife, MARNIE LOWE, v. COOPER A. HALL.

(Filed 5 June, 1947.)

1. Specific Performance § 3—

In an action for specific performance by vendor, the vendee may not ask for rescission on the ground of fraud and at the same time claim damages for breach of warranty.

2. Same—

The purchaser contended that he accepted deed upon fraudulent representations of good title whereas conveyance included a particular strip of land to which vendor did not have good title. Vendor contended that the conveyance did not include said strip. There was evidence that the purchaser, an attorney, had theretofore investigated the title and had accepted fees for such services and had had opportunity to re-examine title prior to delivery of deed which he accepted. *Held:*The issue of fraud was properly submitted to the jury, and the purchaser’s motion to nonsuit in the vendor’s action for specific performance was properly overruled.

3. Damages § 11—

A witness may not give an opinion as to the amount of damages suffered by plaintiff, the ascertainment of damages being the province of the jury, and an instruction upon such testimony upon the issue of damages is perforce erroneous.

DefbNdaNt’s appeal from *Olive, Special Judge,*at January Civil Term, 1947, of Alamance.

Plaintiff brought this action for specific performance of a contract for tbe sale of real estate and the performance by the purchaser of certain obligations to cancel mortgage liens upon the property of plaintiffs, and for damages caused by the nonperformance of the contract.

The complaint alleges that the real estate, subject of the contract, was a part of a development in or near the City of Burlington, and consisted of a house, workshop, and a number of lots in a subdivision referring to the map. It was sold at public auction and defendant became the highest bidder at the price of $14,775, causing his name to be signed to a “sales *542ticket,” or memorandum of tbe agreement, and tbe purchase was confirmed by tbe plaintiff.

Plaintiff then bad a warranty deed to the property prepared somewhere about 4 June, 1946, and delivered it to defendant. Tbe defendant accepted tbe deed, made a cash payment of $925. Tbe defendant took possession of tbe property, collected tbe rents therefrom, made changes in tbe dwelling bouse, bad tbe insurance transferred to him, and generally exercised dominion and ownership over tbe property.

It is further alleged that there were encumbrances on tbe property, which also covered other property of plaintiff, consisting of three deeds of trust, listed in tbe complaint, securing a total of $13,000 which defendant agreed to pay out of tbe purchase price and cancel of record. Tbe complaint alleges that when plaintiff delivered tbe deed tbe defendant told him be bad acquired all indebtedness secured by these mortgages.

Tbe complaint sets up an itemized statement of a settlement alleged to have been made between plaintiff and defendant, in debit and credit form, which defendant tendered to plaintiff and plaintiff accepted.

Tbe statement credits tbe purchase price of tbe property, $14,775, charging against it tbe three notes and deeds of trust mentioned, rent of bouse for one month after Hall took over, $420 rent of apartment for Lowe’s mother, and two per cent discount on purchase price for cash settlement, $30 rent of shop by Lowe, $40 legal fees to Hall, $925 cash payment, which, adjusted by some other small items, left due to Lowe $163, which was paid on the settlement.

It is alleged that Hall kept the deed until 22 July, 1946, when he mailed it to plaintiff, and plaintiff has been unable to redeliver the deed because of Hall’s refusal to receive it. That Hall demanded a reduction of $2,500 in the purchase price. Hall has refused to cancel the deeds of trust as agreed. The plaintiff alleges that he has been damaged thereby in the sum of $5,000.

The defendant, in his answer, admits the purchase of the property at the auction at the purchase price named, the signing of the contract, the acceptance of the deed, the purported settlement leaving a balance due Lowe of $163, and that the encumbrances mentioned in the complaint were not canceled. He sets up- as a defense that the sale was conditioned by the auctioneer upon the ability of Lowe to give a good title; that the title was not good, in that included in the property sold to him there was some to which Lowe had no title, and that there were upon the property laborers’ and materialmen’s liens in a substantial amount. He further alleges that the purchase of the property, the signing of the deed, the purported settlement, were all brought about through the false and fraudulent representation of the plaintiff that he had a clear and unencumbered title to the property conveyed, whereas, there was included in it *543certain property known as tbe Scott Cates lot to wbicb plaintiff bad no title.

On tbe trial tbe plaintiff introduced tbe allegations of tbe complaint and admissions in tbe answer, and proceeded witb testimony.

Tbe plaintiff testified in support of tbe allegation in bis complaint in tbe same tenor as above set out.

Plaintiff testified tbat after tbe sale was confirmed by bim be bad a deed prepared, signed by bimself and wife, acknowledged before a notary, and, on 5 June, 1946, delivered it to Mr. Hall. They settled up for everything owed by either party to tbe other, leaving a balance due plaintiff of $163 wbicb defendant paid bim in cash, and out of wbicb be paid defendant $150 for straightening up tbe title. Tbat Hall knew tbe condition of tbe title to tbe land because be bad paid bim theretofore $300 to look it up.

Plaintiff paid Hall $150 to get a deed for a “little undeveloped piece of property” next to tbe bouse, the Scott Oates lot. Hall bad tbe deed at tbe time witb about 30 names on it — all but one of tbe heirs. He was to draw tbe papers so tbat Lowe might go to New Jersey to get tbe last heir to sign. This was six months before tbe sale. Plaintiff testified tbat be paid Hall $300 to look up tbe title — to protect bimself — at tbe time of tbe loans, and Hall reported to bim it was good.

Witness stated tbat be bad bad some work done on tbe apartment bouse, shop building and garage, all of wbicb bad not been paid for at tbe time of tbe delivery of the deed, but all bad been paid for some time after tbe sale. One bill, Mr. Harris’ bill, bad not yet been paid. Tbat material did not go into the bouse Cooper Hall bought, “but be put a lien on everything I bad.” No liens bad been filed when tbe deed was delivered.

“I told Mr. Hall tbe Scott Cates property came to a point of one foot on Queen Street and spanned out to 25 feet to tbe back of tbe property be bought. It was not across tbe Cooper Hall lot, it was on one side. Tbe Scott Cates line was the Hall line.”

“Mr. Hall knew tbe location of tbe Scott Cates lot when be bought tbe property — all about it, when be lent tbe money on tbe property — he bad tbe deed in bis band, looking and reading it off and looking at tbe piece of property.”

Mr. Hall now has tbe deed from tbe heirs to tbe Scott Cates lot. Mr. Hall prepared tbe deed for bim to take to New Jersey for tbe last heir to sign and reported tbe title was all right.

Geddie Fields, tbe auctioneer who sold tbe Lowe property, testified for plaintiff tbat tbe property sold to Hall consisted of an apartment bouse, woodworking shop and several lots. Prior to tbe sale be announced tbat tbe sale was subject to passing the title by “tbe most exacting attorney.” There was other property of Lowe sold at tbe auction — in all over *544$42,000. Some time in Inly, 1946, Mr. Lowe brought witness a deed Mr. Hall bad sent back and said Hall bad decided not to take tbe property, showing a letter to that effect. Witness loaned Lowe money, disbursing it in payment of bills for labor and material on Lowe’s property' — because Hall said be would not take tbe property because of outstanding bills. Fields carried tbe paid bills to Hall, along with tbe deed. Tbe paid bills represented every dime as far as witness knew which might be against tbe property. He told Hall that Lowe was looking to him to deliver tbe deed and be was doing it now. Hall said be was not going to take tbe property unless Lowe knocked off $2,500. He raised no objection as to tbe title. At this time there were no liens filed against tbe property.

On tbe question of damages this witness testified that be was familiar with tbe real estate market in tbe area, and bad an opinion satisfactory to himself as to tbe damage caused Lowe by tbe failure to cancel tbe mortgages and accept tbe title. It was placed at $15,000. It was explained that be was unable, because of tbe situation in which it left tbe remaining land sold at tbe auction, also included in tbe uncanceled deeds of trust, to deliver deeds to any of tbe purchasers. That a second sale always affects tbe price of property. He attempted such a sale' — not including that purchased by Hall — and could get no bids.

Plaintiff introduced documents as exhibits, including tbe deed of himself and wife to Hall, tbe statement of settlement prepared by Hall, and tbe instruments securing indebtedness which it was alleged Hall promised to pay and cancel, showing them to be still outstanding. Tbe deeds in trust covered tbe Hall purchases as well as additional property .of plaintiff.

Tbe defendant testified that after tbe purchase of tbe property be wrote to Mr. Phipps, Lowe’s attorney, that be wanted tbe deed delivered 3 June as be would pay cash, and it would be necessary to cancel a mortgage on tbe remaining property before be left. Mr. Lowe came in tbe office on 7 June. He told Lowe that when be went over to cancel tbe bank mortgage a man told him be expectéd he’d “get messed up” about tbe title because tbe Cates property was included in what be bought. Lowe assured him it was not, and on tbe strength of that “we proceeded to settlement of our matters as indicated here on that slip which has been introduced.” Defendant denied paying tbe $163 balance.

Defendant denied representing Lowe in tbe Scott Cates matter except to get “tbe minor’s interest.” He testified that Geddie Fields came to see him about tbe matter and be asked Fields, “Well, have you paid all of these labor and material claims?” And Fields told him be bad, and wanted to show him tbe papers, and defendant said, “No, I am not interested any longer. I have been completely worn out trying to get a title, and I’m through with it.” Defendant denied saying anything to Fields about knocking off $2,500 from tbe price.

*545Defendant said tbe deed containing tbe names of all tbe beirs to tbe Scott Oates property was received by bim tbe latter part of June and is now in bis office. It was not put on record because, “This man, Mr. Black, came into my office and told me about these liens and.when be did, wby, I stopped and folded my bands and called for Mr. Lowe.” Defendant filed tbe lien for Harris and “filed it on everything Ben Lowe bad out there,” because it was impossible to work out a description.

Defendant testified that be bad taken over tbe property when Lowe gave bim tbe deed, and collected tbe rents. That be collected tbe rents, and credited them on tbe mortgages. They have not been actually credited on tbe papers but a record has been kept in bis office. Defendant stated that be was in possession of tbe premises, not as owner, but under tbe mortgages.

Mrs. Hall corroborated defendant in saying that Mr. Hall said nothing to plaintiff in tbe conversation which she beard about reducing tbe purchase price by $2,500. She thinks she was present every time when a conversation of that sort could have occurred. Defendant introduced copy of the lien of Harris Lumber Company for materials furnished Lowe, on Lowe’s property, including that purchased by Hall.

In rebuttal plaintiff introduced various deeds purporting to convey the Scott Cates property, as to all heirs.

The defendant demurred to the evidence in the manner directed by the statute and moved for judgment of nonsuit, which motion was denied, and defendant excepted.

The following issues were submitted and answered as indicated:

“1. "Was a warranty deed for the property, described in the complaint as bid off by the defendant, signed, sealed, acknowledged, and delivered by the plaintiff B. R. Lowe and his wife to the defendant as alleged in the complaint?

“Answer; Yes.

“2. Was the delivery of the deed to the defendant procured by false and fraudulent representations of the plaintiff B. R. Lowe as alleged in the Answer ?

“Answer: No.

“3. What damages, if any, is the plaintiff B. R. Lowe entitled to recover of the defendant?

“Answer: $2,000.00.

“4. What amount, if any, is the defendant entitled to recover of the plaintiff B. R. Lowe on his counterclaim ?

“Answer: .”

Defendant moved to set aside the verdict for errors committed on the trial, which motion was overruled, and defendant excepted. To the ensuing judgment defendant objected and excepted; and thereupon appealed, assigning errors.

*546
      *L. J. Phipps and Bonner D. Sawyer for plaintiff, appellee.*

*Louis G. Allen and Barnie P. J ones for defendant, appellant.*

Seawell, J.

Numerous objections were made to the instructions given by the court to the jury, all of which have been given careful attention. We do not find in them prejudicial error and do not feel that extended discussion is demanded. Reference to the theory on which the case was tried — and perhaps the only possible theory on which it could be tried under the pleadings — will clear up some of these objections.

The defendant’s defense is practically one of confession and avoidance. He accepted plaintiff’s deed and effected a settlement with him, went into possession of the property as owner, and collected rents — rents from Lowe himself and his mother, and assumed complete dominion. All this, he alleges, was done under the fraudulent representations of the plaintiff with respect to the title of the property, particularly with regard to the Scott Cates strip or wedge, which plaintiff represented as located outside the purchased property, whereas, the defendant contends, it is located within it. On this he asked for a rescission of the whole transaction and his money back. The plea and demand for rescission was inconsistent with assertion of a claim for breach of warranty, *Troitino v. Goodman,*225 N. C., 406, 415, 35 S. E. (2d), 277. Counsel stakes the issue on fraud.

The matter in the most favorable light for the defendant, was a jury question, and the jury declined to accept the imputation of fraud. Considering the admissions of the defendant as to his acquaintance with the Scott Cates situation, and his acceptance of fees on several occasions to investigate the title to the property, and the opportunity afforded him to re-examine it, it is a question whether his defense might not be as weak in law as the jury found it to be in fact.

However, the verdict on the *quantum*of damages cannot be sustained on the evidence and instructions in the record. There was error in the admission of the evidence of Fields giving his opinion of the amount of damages, since that was the province of the jury. The instructions based upon it were, therefore, affected with the same objection.

There must be a new trial on the issue as to damages; and to that end the case is remanded. In other respects we find no error, and the judgment is affirmed.

Partial new trial.