#### HENRY NEWELL v. C. B. BARLEY.

(Filed 24 November, 1920.)

1. Courts — Jurisdiction—Justices’ Courts — Contract—Breach—Torts.

Bev., 1419, passed in conformity with our State Constitution, Art. IY, sec. 27, confers jurisdiction on the justice’s court over an action to recover unliquidated damages for breach of contract when the principal sum demanded does not exceed two hundred dollars; and such is not disturbed by elements of false warranty and deceit being also involved, on the ground that over an action sounding in tort such jurisdiction is limited to a recovery of not exceeding fifty dollars.

2. Same — Summons—Amount Involved.

The amount demanded in the summons controls the jurisdiction in an action upon contract in a justice’s court, and, when the debt is claimed in a larger sum, the creditor may remit the excess, over two hundred dollars, in which event the jurisdiction as to the amount involved will be upheld.

Civil actioN, tried on appeal from a justice’s court before Lana, J., and a jury, at May Term, 1920, of MecexeNBUBG.

Tbe action is to recover tbe sum of $200 for breach of contract of an alleged express warranty in sale of mule by defendant to plaintiff. Tbe summons returnable to tbe justice stated $200 as tbe sum demanded for tbe alleged breach of contract. On denial of liability there was judgment of $200 damages in tbe justice’s court, and on tbe trial in tbe Superior Court, tbe jury rendered tbe following verdict :

“1. Did tbe defendant guarantee tbe mule described in tbe complaint to be sound and all right; that be would make good any loss to tbe ■plaintiff by reason of any defect in tbe mule? Answer: ‘Yes.’

“2. Did tbe defendant fail to carry out tbe terms of said agreement? Answer: ‘Yes.’

“3. "What damage, if any, is plaintiff entitled to recover? Answer: ‘$200.’ ”

Judgment on tbe verdict for plaintiff, and tbe defendant excepted and appealed, assigning for error that tbe justice bad no jurisdiction of tbe action.

T. L. Kirkpatrick and W. L. Marshall for plaintiff.

J. D. McQall for defendant.

HoKE, J.

Our Constitution, Art. IV, sec. 27, in express terms confers upon justices of tbe peace jurisdiction, “under such regulations as tbe General Assembly shall prescribe,” of civil action founded on contract, “wherein tbe sum demanded shall not exceed $200,” etc. Tbe statutes applicable, Rev., 1419, et seq., establish tbe regulations for tbe trial of *433such actions before a justice and others specified in the constitutional provision. In construing these regulations, our Court has uniformly held that in action for breach of contract involving a claim for unliqui-dated damages, the jurisdiction and the amount demanded is determined as stated by the sum named on the summons.. And in other cases, though the sum demanded or really involved in the issue should be in excess of $200, the justice’s jurisdiction may be upheld when a remitter has been entered in apt time, as provided in Rev., 1421. Teal v. Templeton, 149 N. C., 32, and cases cited.

^he objection insisted on for defendant that this is an action for deceit and false warranty, constituting a tort, and which the jurisdictional amount for a justice’s court is restricted by the Constitution to $50, cannot be sustained. A perusal of the record showing that the suit is for breach of an express contract of warranty, instituted and maintained throughout as such by plaintiff, in which the amount demanded in the summons is $200. And though the elements of false warranty and deceit are also presented, this would not interfere with the prosecution of the present action, where the facts show that suit for breach of contract is maintainable. Stroud v. Ins. Co., 148 N. C., 54; Manning v. Fountain, 147 N. C., 18; Parker v. Express Co., 132 N. C., 128.

We find no error in the record, and the judgment for the plaintiff is affirmed.

No error.