#### J. P. SEAWELL v. EMANUEL PERSON and J. S. McLAUGHLIN.

(Filed 23 October, 1912.)

1. Leases, Written — Contracts — Breach — Measure of Damages— Lessee’s Services — Evidence.

The plaintiff leased the defendant certain fanning lands for the purpose of cultivation by written agreement, and in the contract agreed to furnish a certain amount of guano, and failed or refused to furnish the guano, and entered upon the leased premises and rented it to another for the crop year covered by the defendant’s lease: Held, (1) the defendant could recover upon the plaintiff’s breach of contract; (2) it was competent for the defendant to introduce the written lease in evidence, and prove the value of his services rendered thereunder, as an element of damages.

2. Mortgages — 'Maturity—Seizure by Mortgagee — Expenses—Damages.

One who has sold a mule and secured the purchase price by a chattel mortgage, thereon is not entitled to recover his expenses in keeping the mule which he has seized before the maturity of the mortgage.

*2923. Contracts, Breach of — Admissions—Verdict—Appeal and Error.

The plaintiff in this case, having admitted that he had broken his contract with the defendant, for which damages are sought by the latter by way of counterclaim, it is Held that the defendant is entitled to recover the daiuages arising therefrom.

Appeal by plaintiff from Justice, J., at May Term, 1912, of Moore.

This is an action to recover personal property, tbe plaintiff claiming to be tbe owner thereof under a chattel mortgage, executed by tbe defendant Person on 18 February, 1911, to secure $210, of which $160 was the purchase price of a mule and $50 for supplies to be furnished.

The defendant admitted the execution of the mortgage, but denied that he was indebted to the plaintiff. He alleged that on the day the chattel mortgage was executed, the plaintiff rented him a farm known as the Rhodes place, for the year 1911, by written lease, and agreed to furnish him four tons of guano and $50 in supplies; that he entered into possession of the Rhodes place and did work thereon in preparing the crop of the value of $60; that within about sixty days after he entered into possession of said land the plaintiff, without cause, seized the mule and guano he had sold to him, took possession of the land, and prevented him from cultivating the crop.

The plaintiff admitted the execution of the lease, subject to an objection as to its competency. The plaintiff testified “that shortly after the rental contract, of date 18 February, 1911, and during the latter part of the month of March or the first of April, in 1911, one of Person’s mules died, and that the plaintiff took possession of the mule he had sold to Person for $160, retained the same and sold the mule to another party and retained the purchase price thereof,' and also retook from the defendant Person all the guano which the plaintiff had delivered to the defendant Person under the rental contract; that the plaintiff at said time rented' the Rhodes place to another party by the name of Thomas, and that Thomas cultivated it during the year 1911; that prior to this time and after the rental contract had been made with the defendant Person, Per*293son bad done considerable work in preparing tbe lands known as tbe Ebodes place rented to Person for cultivation in cotton. Plaintiff testified that be did not claim anything from tbe defendant Person in view of tbis conduct, except tbe sum of $39.95, covering tbe items advanced Person for supplies to make tbe crop on tbe Ebodes place prior to tbe plaintiff’s retaking tbe mule and fertilizers and placing tbe Ebodes place in possession of another tenant, Thomas.”

Tbe plaintiff offered evidence tending to prove that tbe supplies be furnished were of tbe value of $39.95, while tbe evidence of tbe defendant was to tbe effect that they were worth $28.85. Tbe defendant also offered evidence as to tbe work done by him.

Tbe jury returned tbe following verdict:

1. In what amount, if any, is defendant indebted to plaintiff on account of advancements? Answer: $39.95.

2. "What was tbe value of tbe labor done, by tbe defendant on Ebodes place under tbe contract of leasing? Answer: $45.

Judgment was rendered in favor of tbe defendant, and tbe plaintiff appealed, assigning tbe following as errors:

(1) That tbe court erred in admitting tbe contract of rental entered into between tbe plaintiff and tbe defendant Emanuel Person, dated 18 February, 1911, introduced as evidence, as shown in tbe record.

(2) That tbe court erred in admitting tbe evidence of ~W. M. McLaughlin, in answer to tbe question as to what was tbe reasonable value of tbe work that Emanuel Person bad done on tbe Ebodes place at tbe time be quit, as shown in tbe record as tbe second exception.

(3) Tbe court erred in sustaining tbe objection of tbe defendants to tbe question asked tbe witness O. B. Fry, as to what was tbe expense of keeping tbe mule that tbe plaintiff retook from tbe defendant Person before tbe plaintiff sold said mule, as shown by tbe record.

(4) That tbe court erred in sustaining tbe objection of tbe defendants to tbe question asked tbe witness 0. B. Fry, regarding what tbe plaintiff obtained for tbe mule be retook from tbe defendant Person at a sale of tbe mule, as shown on the record.

*294(5) That the court overruled the motion of the plaintiff to set aside the verdict of the jury, as shown in the record.

(6) That the court erred in rendering the judgment appearing in the record.

Clegg & Clegg for plaintiff.

U. L. Spence for defendant.

AlleN, J.

The plaintiff, upon his. own admissions, entered upon the land he rented to the defendant in violation of his contract, and failed to furnish the guano, as he had agreed to do.

This gave to the defendant a right of action to recover damages for the breach (Barneycastle v. Walker, 92 N. C., 201; Herring v. Armwood, 130 N. C., 181), and it was necessary and relevant to introduce the contract and to prove the value of the services, as an element of damage.

We are unable to see any theory upon which the plaintiff can charge the defendant with the expense of keeping the mule, as he admits he seized it before his mortgage was due, and when there was, so far as the record discloses, no semblance of an excuse for doing so.

The sixth assignment of error presents the question of the sufficiency of the verdict to sustain the judgment, in the absence of a finding that the plaintiff broke the contract, and it would not be free from difficulty but for the admission by the plaintiff of facts which clearly constitute a breach.

We find nothing in the record of which the plaintiff can complain. The defendant was allowed to recover only one item of actual damage, when he might reasonably have claimed others, and in some aspects of the evidence it may be that he was entitled to have an issue submitted as to punitive damages.

No error.