Norwood v. Carter

87 S.E.2d 2 (1955)

242 N.C. 152

Iola G. NORWOOD v. David CARTER and wife, Virginia Carter.

No. 458.

Supreme Court of North Carolina.

April 20, 1955.

*4 Armistead J. Maupin, Raleigh, for plaintiff-appellee.

Yarborough & Yarborough, Louisburg, for defendant-appellants.

DEVIN, Justice.

The evidence offered by the plaintiff was sufficient to support the verdict on the first issue, and to show that the defendant David Carter breached the terms of the covenant upon which the conveyance of the land was made to him. Hence the plaintiff was entitled at least to nominal damages.

But we think there was error in the court's charge to the jury on the second issue, the issue directed to the question of the value of the services defendant was obligated to perform. According to the record, the portion of the charge hereinbefore quoted constituted the entire charge of the court on this issue. The allegation in the complaint that "the services to her, the things that he promised to do and which he failed to do, cost her if he had to pay for them as much as $100 a month" seems to have been submitted to the jury and apparently understood by them as affording the only basis for determining the amount of recovery. No evidence was offered as to the value of the services which defendant had contracted to furnish and had failed to render, or what loss or expense the plaintiff has been caused to suffer in order to obtain services substantially equal to those the defendant had obligated himself to perform. Lunsford v. Marshall, 230 N.C. 610, 55 S.E.2d 194; In re Atkinson's Will, 225 N.C. 526, 35 S.E.2d 638. No rule or standard for the admeasurement of damages was given.

Where breach of contract has been established, the general rule is that the measure of damages is the amount which will compensate the injured party for the loss which fulfillment of the contract could have prevented or the breach of it has entailed. Monger v. Lutterloh, 195 N.C. 274, 142 S.E. 12; Caldwell v. McCorkle, 225 N.C. 171, 33 S.E.2d 878; 50 A.J. 885.

The injured party is entitled to compensation for his loss and to be placed as near as this can be done in money in the same condition which he would have occupied had the contract not been breached. Perkins v. Langdon, 237 N.C. 159, 169, 74 S.E.2d 634; Troitino v. Goodman, 225 N.C. 406, 35 S.E.2d 277; Chesson v. Keickheffer Container Corp., 216 N.C. 337, 4 S.E.2d 886.

The damages for failure to furnish services in accordance with the contract therefor are measured by the actual loss sustained as a natural and proximate consequence. And when the contract is to perform specific services, this ordinarily means the reasonable cost of securing performance by other means. And where the contract for support has been breached, the injured party would be entitled to recover as damages the value of the services agreed to be rendered. 25 C.J.S. Damages, § 79, pages 580, 582.

*5 A covenant for future services as consideration for a deed imposes a legal obligation on the grantee, and the remedy for breach is an action for damages. Bowen v. Darden, 233 N.C. 443, 64 S.E.2d 285. "The proper measure of damages in such action is the value of the promised support lost by the grantor." Minor v. Minor, 232 N.C. 669, 62 S.E.2d 60, 64.

"However, where actual pecuniary damages are sought, there must be evidence of their existence and extent, and some data from which they may be computed. No substantial recovery may be based on mere guesswork or inference; without evidence of facts, circumstances, and data justifying an inference that the damages awarded are just and reasonable compensation for the injury suffered". 25 C.J.S. Damages, § 28, page 496.

The other exceptions noted by defendants and brought forward in their assignments of error need not be considered as we think there should be a new trial.

New trial.

BARNHILL, C. J., took no part in the consideration or decision of this case.