#### H. T. MARTIN v. W. F. CLEGG.

(Filed 19 November, 1913.)

Landlord and Tenant — Eject merit — Reasonable Value — Evidence.

The plaintiff' in ejectment is entitled to recover a fair rental value from the defendant holding over after his breach of the contract in failing to pay the stipulated rent, after notice to vacate the premises; and upon the question of this reasonable value it is competent for the defendant to show that a part of the premises had for a long time remained vacant, that it is not readily rented or in mueji demand.

Appeal by defendant from Peebles, J., at February Term, 1913, of Guilpoed.

Civil action tried upon these issues :

1. What sum, if anything, is the -plaintiff entitled to recover of tKe defendant on account of rents as stipulated in the contract? 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 thereabout, waive the penalty stipulated in the contract? Answer: Yes.

5. If not, what sum, if anything, is the defendant entitled to recover of the plaintiff, 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 accepted and appealed from the judgment rendered.

King & Kimball for plaintiff.

A. L.'Brooks for defendant.

Brown, J.

This action is brought to recover the possession of certain property known as Clegg’s Hotel in the city of Greensboro.

*529' On 29 October, 1909, defendant was served by tbe sheriff • with a written notice by tbe plaintiff, to vacate tbe premises, for neglect, after due notice, to make payments of rent as stipulated: Defendant, in consequence of tbis notice, refusing to vacate, but continuing in possession, action was instituted. in tbe Superior Court on 28 August, 1911, to eject tbe defendant and to recover damages for bis bolding over.

There are twenty-nine assignments of error, but it is necessary to consider only tbe fifteenth, sixteenth, and seventeenth.

These assignments show error upon tbe part of tbe court, because, as stated in tbe brief of defendant, “after be bad opened tbe door, and permitted plaintiff to show what tbe reasonable rental of tbe property was from July, 1909, -to 1 January, 1913, declined to permit tbe defendant to testify with relation to tbe location of tbe place, and that it was so situated that you could not always beep it rented, and that there was not always a continuous demand for tbe stores, and that, in fact, for about three years of- tbe time one of tbe stores was not rented.”

Tbis extract from tbe brief is borne out by tbe record.

Defendant was sworn as a witness in bis own behalf, and upon tbe question as to tb.e actual rental value of tbe property after 'October, 1909, bis counsel asked him bow much tbe storeroom was vacant, and be answered “Three years.” Tbis was excluded. . „

Tbe witness was then asked:

Q. Is it a place where you can always beep it rented?

Objection by plaintiff. Sustained. Exception by defendant.

And again:

Q. Is there a demand for that store continuously at that rental ?

Objection by plaintiff. Objection sustained. Defendant excepts.

The court charged the jury: “If you do not find that be had forfeited his contract, bad broken tbe contract, why then tbe plaintiff would be entitled to recover simply tbe stipulated price, $92.51 a month. But' if you are satisfied by tbe greater *530weight of evidence that the defendant bad broken bis contract by not paying tbe rent, then from that time after be was notified and held' over, tbe plaintiff would be entitled to recover what was a reasonable rental value of tbe • property. To get at that, you will have to t%ke tbe evidence of tbe witnesses, together with tbe stipulated price; that is some evidence of what it was worth; but it is not binding.”

Again, at tbe request of tbe plaintiff, tbe court charged: “Tbe court charges you that if you shall find that the defendant committed a breach of bis contract, as alleged, then tbe plaintiff would be entitled to recover from tbe time of such breach tbe fair market value of tbe premises, as you may find tbe same to be from tbe evidence, and by its greater weight.”

There is no doubt tbe jury well understood that after 'October, 1909, when tbe notice to vacate was served, that, in assessing tbe rents, they were not to be confined to - that stipulated in tbe contract of lease, but were permitted to consider under tbe first issue what was tbe fair rental'value of the property.

Tbe rule is recently stated by this Court in Sloan v. Hart, 150 N. C., 275, as follows: “By rental value is meant, not the probable profits that might accrue to plaintiffs, but tbe value as ascertained by proof of what tbe premises would rent for, or by evidence of other facts from which tbe fair rental value may be determined.”

Tbe testimony rejected, that defendant was unable to find occupants for tbe storerooms for three years; that tbe place is one not readily rented and not much in demand, is very pertinent upon the fair- rental value of the property.

Tbe plaintiff was permitted to testify: “That tbe fair rental value of tbe premises from 1 November, 1909, to 1 January, 1913, over and above tbe rental stipulated in tbe lease, is $1,529.64.”

Why tbe defendant should be prohibited from proving ‘that tbe rental value since 1 November, 1909,' is much less than claimed by tbe plaintiff, we are unable to see.

' Tbe court erred in excluding such evidence upon tbe part of tbe defendant.

New trial.