
    R. T. WILLIAMS v. D. U. BRUTON.
    (Filed 8 June, 1940.)
    Agriculture § 7e—
    Evidence held sufficient to be submitted to jury in tbis action by a tenant to recover damages for breach of contract by his landlord in failing to give the tenant the tobacco allotment stipulated in the agreement.
    Devin and Baeniiill, JJ., dissent.
    
      Appeal by plaintiff from Stevens, J., at tbe February Term, 1940, of ROBESON.
    
      McKinnon, Nance & Seawell for plaintiff, appellant.
    
    
      F. D. Haclcett for defendant, appellee.
    
   Schenck, J.

Tbis is an action to recover damages alleged to bave been caused by a breach of contract, and was formerly before us at tbe Fall Term, 1939 (216 N. C., 582). In tbe former opinion, wbicb reversed a judgment sustaining a demurrer upon tbe ground that tbe complaint did not state facts sufficient to constitute a cause of action, it is said: “Tbe contract, its breach and consequent damage are alleged, whether such can be proved is for determination upon tbe evidence adduced.”

Tbe contract alleged was that tbe defendant, as landlord, agreed to rent one-half of tbe 10%-acre tobacco allotment made to him by tbe Government to tbe plaintiff, as tenant, for tbe farming year 1938, and to give tbe plaintiff one-half of tbe poundage allotted for tbe 5% acres rented to him; and tbe plaintiff agreed to make a tobacco crop. There was evidence tending to show that tbe plaintiff made a crop on tbe 514 acres and raised and sold 4,336 pounds of tobacco; that tbe poundage allotment made to tbe defendant for tbe 101/2 acres was 16,190 pounds, that one-half of tbis allotment was 8,095 pounds; that after selling 4,336 pounds of tobacco there was left on bis and bis landlord’s portion of tbe poundage allotment 3,759 pounds; that one-half of tbis last mentioned number, 1,879 pounds, belonged to plaintiff; that tbis unused poundage was valued at 5c per pound, wbicb amounted to $93.95; that tbe defendant has tendered tbe plaintiff $16.28 “in full for left-over poundage” wbicb plaintiff refused, and demanded tbe full sum of $93.95.

We are of tbe opinion, and so bold, that tbe evidence adduced was sufficient to be submitted to tbe jury for determination of tbe issue involved, and that tbe judge of tbe Superior Court erred in sustaining tbe motion of tbe defendant for a judgment as in case of nonsuit when tbe plaintiff bad introduced bis evidence and rested bis case.

Reversed.

DeviN and BabNhill, JJ., dissent.  