Robinson v. . McAlhaney

199 S.E. 26, 214 N.C. 263, 1938 N.C. LEXIS 316

• Court: Supreme Court of North Carolina
• Decided: October 12, 1938
• Status: Published

Opinion

WiNBOBNE, J.

Tbe record, on this appeal discloses error in tbe trial in tbe general county court of Buncombe County wbicb was assigned on appeal to, and declared in tbe Superior Court. Many of tbe assignments of error, wbicb were sustained, cover exceptions to tbe admission of testimony, to tbe statement by tbe court of contentions of plaintiff, and to tbe charge on tbe law, all relating to and bearing upon tbe plaintiff’s allegation tbat sbe was induced to enter into tbe contract by reason of false and fraudulent representations of tbe defendant upon wbicb sbe relied to ber loss and damage.

Evidence was introduced over defendant’s objection and exception. Exception was not taken at tbe time to tbe contentions based on tbe evidence, but tbe court tben gave tbis instruction to tbe jury: “Now, if you find from tbis evidence, and by tbe greater weight of it, tbat tbe defendant and tbe plaintiff entered into tbe contract as sbe alleges, and at tbe time of tbe execution and delivery of tbe lease on tbe premises by Mr. Lambert, tbat tbe defendant tben bad in bis mind tbe intention not to perform tbe contract and tbat be made tbe representations to her tbat be would perform it; tbat tbe representations so made were false and were made with tbe intention of deceiving ber; tbat they did deceive ber; tbat sbe reasonably relied on bis representations; tbat sbe sustained damages thereby, you would answer tbe third issue, ‘Yes.’ ”

Tbe evidence was incompetent. Tbe charge was prejudicial error. Exceptions thereto are well taken. Plaintiff cannot treat tbe contract, as in force for tbe purpose of recovering damages for its breach, and at. tbe same time recover damages as a result of fraudulent inducement. Food Co. v. Elliott, 151 N. C., 393, 66 S. E., 451.

It is manifest tbat tbe jury may fairly have understood tbat, in assessing damages, any fraud found could be taken into consideration. It is unnecessary to discuss other exceptions. Robinson v. McAlhaney, ante, 180.

Tbe judgment below is

Affirmed.