11 N.C. App. 381 | N.C. Ct. App. | 1971
Plaintiff’s Assignment of Error No. 4 is to the refusal of the trial judge to give a requested special instruction on the issue of damages. Plaintiff requested the court to charge on the issue of damages as follows:
“Ordinarily, the measure of damages for breach of warranty in the sale of personal property is the difference between the market value of the goods at the time and place of delivery, as delivered, and such value if the goods had complied with the warranty. Special damages may be recovered provided they were within the contemplation of the parties at the time the contract was executed, and are properly pleaded. Where the purchaser does not allege the reasonable value of the chattel as warranted and its reasonable value as delivered, the damages are restricted to special damages pleaded and proved.”
The trial judge refused to give this special instruction and instead charged the jury on the damage issue as follows:
“Now, the court instructs you that the measure of damage on this issue, if you come to consider this issue, is as follows: Ordinarily the measure of damage to the contract is the amount of loss which a party to a contract would naturally and probably suffer from its nonperformance and which would in the minds of the parties at the time of its making reasonably and proximately flow from the breach of contract. ...”
“Now, the court instructs you that the measure of damage there is the amount which the parties to a contract or the party, the defendant, would naturally and probably suffer by reason of the non-performance of the contract and which would reasonably and proximately flow from the breach of the contract, that being the measure of damage, that is, ladies and gentlemen, the defendant says and contends that you should reach this issue and you should answer this issue while the plaintiff says you should not reach this issue, but if you do, you should answer this issue in some amount much less than asked by the defendant.”
The evidence on behalf of the defendant tended to show numerous defects in the mobile home, particularly with regard to the installation thereof on her property; but there was no evidence that the defendant ever attempted to rescind the contract. In fact, the evidence discloses that the defendant occupied the mobile home for some eight months and until the plaintiff repossessed it by claim and delivery proceedings.
We are of the opinion that it was error for the trial judge to refuse the plaintiff’s request for instructions. The charge as given by the trial judge does not comply with the requirements of G.S. 25-2-714(2), which states:
“ (2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.”
The instruction requested by the plaintiff incorporated the statutory elements. The charge as given by the trial judge did not comply with the law on the measure of damages and, in fact, did not give the jury any guidance.
Plaintiff assigned other errors in the trial, but as a new trial is necessary, we will refrain from discussing those assignments as they may not occur again.
New trial.