Numerous objections were made to the instructions given by the court to the jury, all of which have been given careful attention. We do not find in them prejudicial error and do not feel that extended discussion is demanded. Reference to the theory on which the case was tried — and perhaps the only possible theory on which it could be tried under the pleadings — will clear up some of these objections.
The defendant’s defense is practically one of confession and avoidance. He accepted plaintiff’s deed and effected a settlement with him, went into possession of the property as owner, and collected rents — rents from Lowe himself and his mother, and assumed complete dominion. All this, he alleges, was done under the fraudulent representations of the plaintiff with respect to the title of the property, particularly with regard to the Scott Cates strip or wedge, which plaintiff represented as located outside the purchased property, whereas, the defendant contends, it is located within it. On this he asked for a rescission of the whole transaction and his money back. The plea and demand for rescission was inconsistent with assertion of a claim for breach of warranty, Troitino v. Goodman, 225 N. C., 406, 415, 35 S. E. (2d), 277. Counsel stakes the issue on fraud.
The matter in the most favorable light for the defendant, was a jury question, and the jury declined to accept the imputation of fraud. Considering the admissions of the defendant as to his acquaintance with the Scott Cates situation, and his acceptance of fees on several occasions to investigate the title to the property, and the opportunity afforded him to re-examine it, it is a question whether his defense might not be as weak in law as the jury found it to be in fact.
However, the verdict on the quantum of damages cannot be sustained on the evidence and instructions in the record. There was error in the admission of the evidence of Fields giving his opinion of the amount of damages, since that was the province of the jury. The instructions based upon it were, therefore, affected with the same objection.
There must be a new trial on the issue as to damages; and to that end the case is remanded. In other respects we find no error, and the judgment is affirmed.
Partial new trial.