Chesson v. Keickheffer Container Co.
4 S.E.2d 886
N.C.
1939
Check Treatment
Seawell, J.

We are not sure that the evidence in its present form justified the submission to the jury, as an element of damages, losses sustained by the plaintiff with reference to the value of the timber or his present outstanding obligation to pay for it. Provable damages must be reasonably certain and not rest upon doubt or speculation. Brewington v. Loughran, 183 N. C., 558, 112 S. E., 257; Newsome v. Telegraph Co., 153 N. C., 153, 69 S. E., 10; Newbold v. Fertilizer Co., 199 N. C., 552, 155 S. E., 167. Generally, damages recoverable because of breach of contract are those which are the natural and probable consequences of such breach and are, therefore, presumed to be within contemplation of the parties at the making of the contract. Lane v. R. R., 192 N. C., 287, 134 S. E., 855, 51 A. L. R., 1114; Equipment Co. v. Gadd, 183 N. C., 447, 111 S. E., 771. Special damages are recoverable only when the special circumstances out of which they arise are communicated or known to the party sought to be charged. Barrow v. R. R., 184 N. C., 202, 113 S. E., 785; Iron Works v. Cotton Oil Co., 192 N. C., 442, 135 S. E., 343; Peanut Co. v. R. R., 155 N. C., 148, 71 S. E., 71; Hadley v. Baxendale, 9 Eng. Exch., 341. It is to be noted, also, that there is no evidence that plaintiff has as yet sustained a loss by reason of his outstanding obligation to pay for the timber or what such loss might be in view of the fact that the owner took over the location before the expiration of the time given plaintiff to remove the timber.

But if we concede the loss of the stumpage to be a proper element of damage, the instructions to the jury covering this, and its complementary subject of damage under the issue submitted, cannot be approved.

Without attributing error to the charge in that respect, we doubt the propriety of the division of the issue as to damages into the two items; *340 but at any rate tbe instructions were sucb as might likely confuse tbe jury, and in one respect tbe subjects — gains prevented and losses sustained — are so related as to overlap. Tbe findings as to loss sustained might, in some respects, partly duplicate tbe damages permitted to be found as gains prevented. As to gains prevented, tbe jury was instructed that it might apply as a measure of damages tbe difference between tbe price which plaintiff would have obtained for bis pulpwood delivered according to tbe contract, and tbe cost to him incident thereto, including tbe price that be bad to pay for tbe stumpage; and they were further instructed upon tbe item of losses sustained to consider tbe value of tbe timber which be claimed to have lost by reason of defendant’s breach of tbe contract. It is evident that this value might have exceeded tbe cost price, and since tbe timber itself must necessarily have been consumed by plaintiff in carrying out bis contract, be might, under this theory, recover double damages as to tbe excess of value over purchase price.

We do not consider other objections or exceptions, in view of tbe conclusion we have reached. In tbe respects mentioned we find error entitling tbe defendant to a new trial.

New trial.