This is аn action for damages for breach of a lease. By written lease agreement dated 16 February 1981, plaintiff leased from Pomona Associates certain retail store premises located “on the 1st floor of Building No. 1 (one) of the Project known as Pomona Factory Outlet Mall, Phase I . . .” (now Greensboro Outlet Mall) in Greensboro, N.C. Plaintiff operated Nuts N’ Such, a retail store selling nuts, candies and similar products in the leased premises. The term of the lease was for five years commencing in May, 1981; plaintiff was given an option to renew the lease for an additional five year term. Paragraph 28 of the lease agreement provided:
28. Landlord shall have the right to relocate Tenant, at Landlord’s cost and expense, within Pomona Factory Outlet Mall, Phase I, upon sixty (60) days nоtice to Tenant, which relocation shall in no way affect the obligations and duties of either party hereunder. In the event Tenant refuses to accept the new location designated by Landlord, Landlord at its option may cancel and terminate this Lease by an additional thirty (30) days written notice to Tenant.
On 30 August 1981, defendants purchased the mall from Pomona Associates.
On 29 June 1983, defendants nоtified plaintiff that it would be required to move its retail store from the leased premises near the entrance to the mall to a space located in the basement of Building No. 1. Plaintiff was advised that its lease would be terminated if it refused to relocate to the new space. Plaintiff refused to move, objecting to the relocation on the grounds that the new space was not within Phasе I of the mall. On 4 October 1983, defendants evicted plaintiff from the premises. Plaintiff leased space in a shopping mall in Durham and operated its business in that location until it sold the business in January 1986. The space formerly occupied by plaintiff at the Greensboro Outlet Mall was leased by defendants to a Peanut Shack franchise, which sells products substantially similar to those sold by plaintiff. There was evidеnce tending to show that defendants had entered into negotiations with the Peanut Shack franchisee for the space leased by plaintiff prior to giving plaintiff notice to relocate.
At the close of all the evidence, plaintiff moved to amend the complaint to allege that defendants had engaged in unfair and deceptive trade practices in violation of G.S. 75-1.1 and tо pray for treble damages pursuant to G.S. 75-16. The motion was denied. The jury found that defendants had breached the lease agreement and awarded damages of $120,000.00 to plaintiff. De fendants’ post-verdict motions were denied and judgment was entered on the verdict.
Defendants appeal, assigning error to a number of the trial court’s evidentiary rulings and to its refusal of their request for jury instructions. By cross-appeal, plaintiff contends that the trial court erred by denying its motion to amend to conform its complaint to the evidence and by refusing to allow evidence of damages for the period following the 1986 sale of its Nuts N’ Such business. Because the court’s instructions on the issue of defendants’ breach of the lease were incomplete, and because plaintiff was prevented from prеsenting competent evidence of all of its damages, we order a new trial.
Paragraph 28 of the lease agreement gave defendants the right to relocate plaintiffs store within Phase I of the mall. Plaintiff refused to relocate as directed by defendants on the grounds that the new location designated by defendants, in the basement of Building No. 1, was not within Phase I. Paragraph l.(a) of the leаse agreement described the leased premises by reference to a floor plan and a site plan of the Pomona Factory Outlet Mall, both of which were attached to, and incorporated in, the lease. The site plan showed two buildings and was marked with the legend “Phase One Building Area — 78760 SF.” Testimony at the trial indicated that the first floor area of both buildings totalled approximatеly 78,760 square feet. Paragraph 7 of the lease agreement, however, provided for allocation of real property taxes on a percentage basis, calculated “by dividing the number of square feet of the Leased Premises by the number of leaseable square feet in Phase I of Pomona Factory Outlet Mall.” For the purposes of allocating real property tаxes, the lease agreement acknowledged that the “[t]otal leaseable square feet in Phase I of Pomona Factory Outlet Mall” consisted of 130,000 square feet. There was testimony indicating that the 130,000 square foot area included the basement of Building No. 1. No other provision of the lease agreement described “Phase I.”
Defendants contend that the trial court erred by admitting the testimоny of plaintiffs president, William Sanders Mosley,
“The general rule is that when a written instrument is introduced into evidence, its terms may not be contradicted by parol or extrinsic evidence, and it is presumed that all prior negotiations are merged into the written instrument.”
Root v. Allstate Ins. Co.,
Defendants advance similar assignments of error to the admission of four exhibits offered by plaintiff as evidence that Phase I of the mall did not include the basement аrea to which defendants attempted to relocate plaintiffs store. Plaintiffs Exhibit 29 was a letter from Pomona Associates’ architect to Mosley, stating that Phase I consisted of 78,760 square feet on the ground floors of both buildings and that other floors were to be completed in subsequent phases. Plaintiffs Exhibit 48 was the building permit issued by the City of Greensboro Building Inspection Department for Phase I of Pomona Factory Outlet Mall. Plaintiffs Exhibit 9B consisted of architectural drawings submit ted to the City of Greensboro in connection with Pomona Associates’ application for a building permit, and Exhibit 9C consisted of architectural drawings for the basement area of Building No. 1 and are entitled “Ground Floor Plan, Phase III.” According to the testimony of the architect, the drawings contained in Exhibit 9C were prepared for defеndants after they had purchased the mall from Pomona Associates.
We note initially that neither Exhibit 9B nor Exhibit 9C are included in the record before us. As appellants, defendants have the responsibility to see that the record is complete and that it includes such exhibits as may be necessary for an understanding of the errors assigned. App. R. 9(d);
State v. Milby,
Defendants argue that even if the exhibits were not barred by the parol evidence rule, they were not relevant to the question of the parties’ intent at the time they entered into the lease. We disagree. Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” G.S. 8C-1, Rule 401. The architect for Pomona Associates testified that the site plan contained in Exhibit 9B was identical to the site plan attached to plaintiffs lease. It showed that Phase I of the mall totalled
Defendants also assign error to the denial of their motions for directed verdict and for judgment notwithstanding the ver-
diet. The question presented by both the G.S. 1A-1, Rule 50 motions for directed verdict and for judgment notwithstanding the verdict is the same: whether the evidence, considered in the light most favorable to the nonmovant, giving him the benefit of all reasonable inferences and resolving all conflicts in the evidence in his favor, is sufficient to take the case to the jury.
Summey v. Cauthen,
Applying the foregoing standard to the evidence in the present case, we conclude that defendants’ motions were correctly denied. The issue is whether defendants breached the lease by terminating plaintiffs lease after plaintiff refused to relоcate its store to the basement of Building No. 1 of the mall. Resolution of the issue depends upon whether defendants had the right to require such a move pursuant to paragraph 28 of the lease, which limited the landlord’s right of relocation to another space within Phase I. The lease itself is uncertain and ambiguous with respect to the area included within Phase I of the project. When cоnsidered in the light most favorable to plaintiff, there was sufficient evidence to permit a jury to find that at the time they entered into the lease, plaintiff and Pomona Associates mutually intended and understood Phase I to include only the first floors of the two buildings. Whether defendants had the right to relocate plaintiffs store and to evict plaintiff upon its refusal to relocate was properly an issuе for the jury.
Defendants submitted a timely written request for instructions, including a request that the jury be instructed with respect to its duty to determine, from the evidence, the meaning which the parties intended to give to the term “Phase I” as used in the lease. The trial court refused the request, and, with respect to the issue of defendants’ breach of the lease, simply defined the terms “contract” and “breach of contrаct.” Defendants assign error; their exception is well taken.
Where, as in the present case, parol evidence is admissible to explain the meaning of ambiguous language used in a contract, it is for the jury, under proper instructions, to determine what
meaning the parties intended to give to the language.
Root v. Allstate Ins. Co., supra; Parker Marking Systems, Inc. v. Diagraph-Bradley Industries, Inc.,
Notwithstanding our award of a new trial, we deem it appropriate to address assignments of error brought forward by both parties with respect to the admission and еxclusion of evidence on the issue of plaintiffs damages, inasmuch as these matters are likely to recur at retrial.
As damages for breach of the lease, plaintiff sought to recover lost profits. Testimony by plaintiffs president, Mr. Mosley, tended to show that the operation of its store at defendants’ mall had been profitable in 1981 and 1982 and that net sales had increased for each month in 1983 аs compared with the same month in 1982. Over defendants’ objection, Mosley was permitted to give testimony as to the amount of profits lost by plaintiff from the time of its eviction in October 1983 until it ceased business in its Durham location in January 1986. Mosley calculated plaintiffs lost profits by comparing plaintiffs actual sales at the Durham location to actual sales by the Peanut Shack franchise at plаintiffs former location, and applying to the difference the percentage of profit which plaintiff had experienced on its sales prior to being evicted by defendants. Defendants contend that because plaintiffs marketing and management practices differed substantially from those of the Peanut Shack franchise, it was unreasonably speculative to allow the latter’s sаles to be used as a basis for determining plaintiffs lost profits. We disagree.
Damages for breach of contract may include loss of prospective profits where the loss is the natural and proximate result of the breach.
Perkins v. Langdon,
Evidence that plaintiffs Nuts N’ Such store had been profitable up until the time of the alleged breach, and that its sales had increased as new stores had opened in the mall, showed that the business “had been successfully conducted for such length of time that the profits thereof were reasonably ascertainable.”
Perkins v. Langdon, supra,
at 174,
Apparently because plaintiff sold its Nuts N’ Such store in Durham in 1986 and ceased business, the trial court refused to permit plaintiff to offer evidence of projected lost profits from the
time of the sale through the expiration of its lease in 1991. We hold that the exclusion of such evidence was error. Plaintiff relocated its store to the Durham mall only after being evicted from defendants’ mall. While the business had made a profit at defendants’
The excluded evidence consisted, in part, of the testimony of a certified public accountant as to his projections of profits which could have been realized by plaintiff during the remaining term of the lease. The accountant’s projeсtions were based upon plaintiffs actual past operating expenses, adjusted yearly to account for inflation; its rental expense as provided by the lease; the cost of its inventory based upon a fixed percentage of its projected sales; and Peanut Shack’s actual 1985 sales from plaintiffs former location in defendants’ mall. We hold that the proffered evidеnce provided a method of calculating plaintiffs loss of prospective profits which was not unreasonably speculative or remote and provided a basis for the measurement of plaintiffs damages with sufficient certainty as to be competent and admissible.
Plaintiff also assigns error to the denial of its motion, pursuant to G.S. 1A-1, Rule 15(b), to amend its pleading to allege that defendants had engaged in unfair and deceptive trade practices in violation of Chapter 75 of our General Statutes and to seek treble damages and attorneys’ fees. While such amendment of pleadings may be made, even late in the trial or after judgment, in order to conform the pleadings to the evidence and raise issues tried by the express or implied consent of the parties,
Peed v. Peed,
In the present case, plaintiffs motion to amend came at the close of all of the evidence. During the course of the trial, plaintiffs counsel had expressly stated to the court that plaintiff was not seeking treble damages. Thus, even though plaintiff subse quently developed evidence which could arguаbly support a claim under Chapter 75 of the General Statutes, it does not appear that the issue was tried with the implied consent of the parties. Plaintiff has shown no abuse of discretion. We hasten to add, however, that our holding does not preclude plaintiff from moving to amend its pleadings upon remand and prior to a new trial. In the event of such an amendment, there could be no confusion concerning the issues before the court at retrial.
For the reasons stated, we remand this case to the Superior Court of Guilford County for a new trial.
New trial.