Turner Halsey Co. Inc. v. Lawrence Knitting

248 S.E.2d 342 (1978)

38 N.C. App. 569

TURNER HALSEY COMPANY INC., a corporation v. LAWRENCE KNITTING MILLS, INC., a corporation and Lawrence Levy and Mrs. Lawrence Levy.

No. 7726DC1042.

Court of Appeals of North Carolina.

November 7, 1978.

*344 Casey & Daly by Durant W. Escott, Charlotte, for plaintiff-appellee.

Francis O. Clarkson, Jr., and William B. Webb, Jr., Charlotte, for defendants-appellants.

MORRIS, Judge.

Defendants assign as error the court's granting the plaintiff's motion to amend the complaint and motion for summary judgment. We think the assignment is well taken. The amendment was a reduction of the amount of the prayer for relief. The grounds for the motion were that the contract price was $3591.50 but plaintiff, after considerable effort, was able to sell the goods for $1697.80, thereby leaving a balance of $1893.70. The amendment raises the question of minimizing the damages, a question previously raised by the affidavit of defendant Lawrence Levy which was filed 22 March 1977. The affidavits filed by plaintiff were all sworn to prior to that date. The affidavit of the salesmen simply aver that they had attempted to sell the yarn; two since November 1975 and one, since August 1976. The affidavits were given by employees of plaintiff and an officer of Marion Yarns, plaintiff's assignor.

The general rule is that where there has been a breach of contract, the injured party must do "what fair and reasonable prudence requires to save himself and reduce the damage; or the damage which arises from his own neglect will be considered too remote for recovery." Little v. Rose, 285 N.C. 724, 728, 208 S.E.2d 666, 669 (1974), quoting from Tillinghast v. Cotton Mills, 143 N.C. 268, 55 S.E. 621 (1906). The injured party is required to exercise reasonable diligence to minimize the loss. Chesson v. Container Co., 215 N.C. 112, 1 S.E.2d 357 (1939). Whether the injured *345 party did exercise reasonable diligence to minimize his loss is a question for the jury to determine in its consideration of the issue of damages. Timber Management Co. v. Bell, 21 N.C.App. 143, 203 S.E.2d 339 (1974), cert. denied, 285 N.C. 376, 205 S.E.2d 97 (1974); Tillis v. Cotton Mills and Cotton Mills v. Tillis, 251 N.C. 359, 111 S.E.2d 606 (1959).

"As a rule, it is for the jury to determine whether the plaintiff could have lessened the injury by the exercise of ordinary care and at a reasonable expense. Thus, it is for the jury to decide whether reasonable efforts to avoid damages have been made, and to decide what constitutes ordinary and reasonable care and means to lessen the consequences of an injury." 22 Am.Jur.2d, Damages § 339, p. 441.

The court was in error in granting plaintiff's motion for summary judgment.

We also note that the court allowed the motion for summary judgment on the same day that he allowed plaintiff's motion to amend its complaint. G.S. 1A-1, Rule 15(a), provides that "[a] party shall plead in response to an amended pleading within 30 days after service of the amended pleading, unless the court otherwise orders." Defendants do not argue that the court erred in granting the plaintiff's motion to be allowed to amend, but they do take the position that they should have been given time within which to answer before the hearing on the motion for summary judgment. We are inclined to agree." . . . [W]hen the complaint is amended defendant should be entitled to amend his answer to meet the contents of the new complaint . . ." 6 Wright & Miller, Federal Practice and Procedure § 1476, p. 391; see also 3 Moore's Federal Practice 2d § 15.12, pp. 15-154. We assume that defendants have, by now, answered, and, with the disposition of the matter here made, the questions raised is of no further importance in this action.

Reversed.

MITCHELL and ERWIN, JJ., concur.