
    V. R. BARNETT v. J. A. SMITH et al.
    (Filed 10 May, 1916.)
    1. Evidence — Demurrer—Trials—Nonsuit.
    In an action to recover damages for the breach, of a contract, there was evidence tending to show that the plaintiff purchased certain lands from defendant, giving mortgage to secure balance of purchase price, sold certain interests to other parties, and finding that he could not pay the balance of the purchase price, the defendant agreed with the plaintiff to convey the land to another purchaser and repay the plaintiff the amount he had already paid, to wit, $100, less $2 which the plaintiff had received from the purchasers of his interest. There was evidence per contra by the same witness, and it is held that defendant’s demurrer thereto was properly overruled.
    
      2. Pleadings — Counterclaim—Evidence—Issues.
    Where a counterclaim in an action has not been pleaded, and there is no evidence to sustain such plea, had it been made, the refusal of an issue relating thereto is proper.
    8. Contracts — Deeds and Conveyances — Rescinded by Parties — Notes — Interest.
    Where it is established by the verdict of the jury that a deed to lands with mortgage thereon to secure the balance of the purchase price has been rescinded by the parties, the seller is not entitled to interest on the notes given for the deferred payments.
    4. Witnesses — Impeaching Evidence — Appeal and Error — Harmless Error.
    If evidence is erroneously admitted to impeach the testimony of a witness, it will not be regarded as reversible error when it appears that it could not have had any appreciable influence upon the verdict rendered.
    Civil ACTION tried before Webb, J., and a jury, at December Term,. 1915, of GastoN.
    This is an action, commenced before a justice of the peace and tried in the Superior Court on appeal, to recover $98 alleged to be due by contract.
    The plaintiff introduced evidence tending to prove that he bought a tract of land from the defendant for $2,500; that he was to pay $100 cash and. to secure tbe balance of $2,400 by a mortgage on tbe land; tbat tbe defendant executed a deed to bim for tbe land and be executed tbe. mortgage .pursuant to tbe agreement; tbat thereafter be agreed to let one Wooddle and one Costner bave an interest in tbe land upon tbeir agreement to pay to bim a part of the purchase price; tbat be paid to tbe defendant the sum of $98 and tbat Costner and Wooddle made payments to bim which were a part of tbe sum paid to tbe defendant by tbe plaintiff ; tbat thereafter, being unable to pay for tbe land, it was agreed between tbe plaintiff and tbe defendant tbat tbe plaintiff would convey tbe land to one Blackwood, to whom tbe defendant bad agreed to sell it, and tbat in consideration therefor tbe defendant would repay to tbe plaintiff all tbe money be bad paid on the land; tbat tbe defendant has refused to pay according to this agreement.
    Tbe defendant introduced evidence contradicting tbe evidence on tbe part of tbe plaintiff, and there was also evidence on tbe cross-examination of tbe plaintiff tending to sustain tbe contention of tbe defendant tbat Wooddle and Costner made tbeir payments to tbe defendant.
    There was a verdict and judgment for tbe plaintiff, and tbe defendant excepted and appealed.
    Tbe following are tbe assignments of error considered in tbe brief:
    1. To tbe refusal of tbe court to nonsuit tbe plaintiff at tbe close of tbe plaintiff’s evidence, as appears in defendant’s first excexition.
    2. To overruling tbe defendant’s objection to testimony, as appears from defendant’s second exception, as follows:
    This is tbe question asked tbe witness:
    Q. How many times has tbat been? (Objection by defendants to testimony of civil action in court, as tending to impeach witness.)
    A. I don’t know; I haven’t so many actions in court. You know bow many you and Mason bave brought .against me.
    3. To tbe failure of the court to nonsuit tbe plaintiff at tbe close of all tbe evidence, as appears from defendant’s third exception.
    4. To tbe failure of tbe court to submit tbe issue as tendered by tbe defendant, to wit: “What amount, if any, is tbe defendant entitled to recover by reason of defendant’s counterclaim? Answer.”
    
      No counsel for plaintiff.
    
    
      Mangum & W'oltz for defendant.
    
   Allen, J:

There are some portions of tbe evidence of tbe plaintiff which support tbe contention of defendant tbat Wooddle and Costner paid a part of tbe money on tbe purchase price of tbe land, and tbat tbe plaintiff cannot recover tbat part; but there is also positive and direct evidence tbat tbe payments made by Wooddle and Costner were to tbe plaintiff, and tbat tbe plaintiff was tbe only debtor as between bim and tbe defendant, and that all payments made to the defendant were by the plaintiff. There is also evidence that the defendant promised the plaintiff to repay all amounts paid by him in consideration of the execution of the deed to Blackwood.

The plaintiff testified: “I had paid the defendant Smith all of the $100 except $2, and the agreement was that he was to return the $98.”

There being, therefore, evidence- sustaining the plaintiff’s cause of action, the motion for judgment of nonsuit could not be sustained because of contradictory statements of the witness. Poe v. Tel. Co., 160 N. C., 316.

The issue tendered by the defendant was properly refused, no counterclaim having been pleaded, and there is no evidence to sustain the plea.

The claim of the defendant that he is entitled to recover the interest on the notes executed by the plaintiff up to the time of the conveyance to Blackwood has been repudiated by the jury, as the verdict, considered in connection with the evidence, necessarily means that the original contract was rescinded by mutual agreement upon the terms that the plaintiff was to execute a deed to Blackwood and the defendant to return the money paid to him.

It is also in evidence that the defendant received the rents from the land in lieu of interest.

The answer of the defendant to the impeaching question asked him on cross-examination could not have had an appreciable influence on the verdict, and if erroneous to admit it, it would be harmless.

No error.  