Womble v. . Leigh , 195 N.C. 282 ( 1928 )

Staoy, C. J.

Under tbe principles announced in Monger v. Lutterloh, ante, 274, in which tbe opinion was written with a view to tbe facts of tbe present case also, as tbe two cases were argued tbe same day and present identical questions, a new trial must be awarded for error in tbe following instruction to tbe jury:

“If she is entitled to recover at all, she is entitled to recover out of him (defendant) tbe present value, present lump sum of money which would be worth $38,500, payable in monthly installments of five hundred dollars per month, running from tbis period up to November, 1933, that is to say, she would be entitled to a sum of money, which if paid now in cash, would amount to $38,500, payable in monthly installments of five hundred dollars' each, and from that sum of money should be deducted whatever amount she, herself, would realize from the use of the property by good husbandry and by the exercise of reasonable care and reasonable judgment.”

This instruction erroneously states the rule for the admeasurement of damages, in that, the plaintiff is charged in diminution with only such sum as she could have realized from the use of the property by good husbandry, whereas the correct amount to be deducted from the rent reserved in the contract, when the plaintiff reenters for the benefit of the lessee and on his account, without accepting a surrender or terminating the lease, is the fair rental value of the premises for the remainder of the term. The instruction also contains an error in calculation. We cannot say that these errors were cured in the reduction of the verdict on the fifth issue.

There are other exceptions appearing on the record, but as they are not likely to arise on another hearing, we shall not consider them now.

New trial.