Lawrence v. Stroupe

139 S.E.2d 885 (1965)

263 N.C. 618

Lewis C. LAWRENCE v. G. L. STROUPE.

No. 521.

Supreme Court of North Carolina.

January 29, 1965.

*887 Hoyle & Hoyle, Sanford, for plaintiff appellant.

Gavin, Jackson & Williams, Sanford, for defendant appellee.

DENNY, Chief Justice.

It is clear from the evidence on this record that the defendant received and accepted from L. P. Wilkins the full amount of the agreed rental for the year beginning 1 May 1961 to 1 May 1962, in the sum of $400.00. It is likewise clear that in January 1962, before the defendant leased the premises to Paul Pope on 19 January 1962, L. P. Wilkins informed the defendant that he had assigned his lease for the unexpired period from October 1961 to 1 May 1962 to the plaintiff, Lewis C. Lawrence.

At the trial below, the plaintiff offered evidence to the effect that he paid L. P. Wilkins the sum of $200.00 for the unexpired portion of his lease. We think this was sufficient to make out a prima facie case on the first cause of action. Pappas v. Crist, 223 N.C. 265, 25 S.E.2d 850. However, the evidence with respect to damages is so vague and uncertain that plaintiff is not entitled to recover more than nominal damages. Furthermore, the defendant testified that he did not desire to occupy the premises prior to 28 February 1962. At that time only sixty days were left under the terms of the assigned lease.

As to the second cause of action, in our opinion the evidence is not sufficient to establish a contract between the parties with respect to the premises involved for the period beginning 1 May 1962 to 1 October 1963. The plaintiff made it plain to the defendant that he did not want a contract for the later period unless he could obtain the property for the unexpired term held by the lessee L. P. Wilkins; and it is equally clear that he had no contract with Wilkins at any time during the negotiations between the parties in September 1961. Richardson v. Greensboro Warehouse & Storage Co., 223 N.C. 344, 26 S.E.2d 897, 149 A.L.R. 201.

The plaintiff never notified the defendant that he had been successful in obtaining an assignment of the unexpired portion of the lease from Wilkins; defendant first learned from Wilkins in January 1962 that he had made such an assignment. This was more than four months after the last conversation between the plaintiff and the defendant in September 1961. Furthermore, the plaintiff never tendered the rent which he alleged was agreed upon in September 1961, until 17 April 1962, which was 48 days after the alleged breach and nearly three months after plaintiff knew the defendant had leased the premises to Paul Pope. Moreover, if it should be conceded that there was a contract for the extended term, the plaintiff's evidence is insufficient to support a recovery of damages in any substantial amount.

"In an action for damages for a breach of contract, in the absence of some standard fixed by the parties when they *888 made their contract, or otherwise, the law will not permit mere profits, depending upon the chances of business and other contingent circumstances, and which are perhaps merely fanciful, to be considered by the jury as a part of the compensation." Sprout Waldron & Co. v. Ward, 181 N.C. 372, 107 S.E. 214; Davidson Hardware Co. v. Delker Buggy Co., 167 N.C. 423, 83 S.E. 557; Machine Co. v. Wells-Whitehead Tobacco Co., 144 N.C. 421, 57 S.E. 148.

Even so, in our opinion, the ruling of the court below with respect to the second cause of action should be affirmed, and it is so ordered.

The judgment as of nonsuit on the first cause of action is reversed. On the second cause of action the judgment as of nonsuit is affirmed.

Reversed as to first cause of action; affirmed as to second cause of action.