Martin v. Clegg

• Decision Date: 19 November 1913
• Parties: MARTIN v. CLEGG.
• Court: North Carolina Supreme Court

79 S.E. 1105

163 N.C. 528

MARTIN v. CLEGG.

Supreme Court of North Carolina

November 19, 1913

Appeal from Superior Court, Guilford County; Peebles, Judge.

Action by H. T. Martin against W. F. Clegg. Judgment for plaintiff and defendant appeals. New trial.

In an action to recover possession of leased property from the tenant holding over, where the plaintiff was permitted to show that the fair rental value of the premises from November 1, 1909, to January 1, 1913, above the stipulated rental was a certain amount, it was error to exclude the defendant's evidence that the rental value since November 1, 1909, was much less than that claimed by the plaintiff.

Civil action tried upon these issues: 1. What sum, if anything, is the plaintiff entitled to recover of the defendant on account of rents as stipulated in the contracts? Answer: $2,563.56. 2. Did the defendant commit a breach of his contract by failure to pay rents, as agreed in the contract? Answer: Yes. 3. If so, what sum, if anything, is the plaintiff entitled to recover of the defendant, by way of damages for wrongful detention of the premises in controversy? Answer: Nothing. 4. Did the defendant, by his conduct and delay for six years or thereabouts, waive the penalty stipulated in the contract? Answer: Yes. 5. If not, what sum, if anything, is the defendant entitled to recover of the palintiff, on account of the penalty, $20 per month, stipulated in the contract? Answer: Nothing. 6. Did the defendant, before breach of his contract, install in Martin's building radiation as alleged? Answer: No. The defendant excepted and appealed from the judgment rendered.

A. L Brooks, of Greensboro, for appellant.

King & Kimball, of Greensboro, for appellee.

BROWN J.

This action is brought to recover the possession of certain property known as Clegg's Hotel in the city of Greensboro. On October 29, 1909, defendant was served by the sheriff with a written notice by the plaintiff to vacate the premises, for neglect, after due notice, to make payments of rent as stipulated. Defendant, in consequence of this notice refusing to vacate, but continuing in possession, action was instituted in the superior court on August 28, 1911, to eject the defendant and to recover damages for his holding over.

There are 29 assignments of error, but it is necessary to consider only the fifteenth, sixteenth, and seventeenth. These assignments show error upon the part of the court because, as stated in the brief of defendant, "after he had opened the door, and permitted plaintiff to show what the reasonable rental of the property was from July, 1909, to January 1 1913, declined to permit the defendant to testify with relation to the location of the place, and that it was so situate that you could not always keep it rented, and that there was not always a continuous demand for the stores, and that, in fact, for about three years of the time, one of the stores was not rented." This extract from the brief is borne out by the record. Defendant was sworn as a witness in his own behalf, and upon the question as to the actual rental value of the property after October, 1909, his counsel asked him how much the storeroom was vacant, and he answered, "Three...