Westall v. Atlas Supply Co.

Stacy, C. J.,

after stating the case: The trial court held, as a matter of law, that the plaintiff was entitled to recover the balance due under the contract, i. $300 per month for eleven months, “less any sum that the plaintiff might have realized by the exercise of ordinary diligence in renting or leasing tbe property to some one else.” Monger v. Lutterloh, 195 N. C., 274, 142 S. E., 12. In tbis, we think there was error.

As to whether there was a surrender and acceptance of the tenement when the plaintiff received the keys through the mails, accompanied by defendant’s letter of 9 February, 1928, and kept them without further comment, is a question presented by the evidence, determinable alone by the jury. 16 R. C. L., 1154; Note, 18 A. L. R., 957.

New trial.