McBride v. Apache Camping Center, Inc. , 36 N.C. App. 370 ( 1978 )

243 S.E.2d 913 (1978)

Robert M. McBRIDE
v.
APACHE CAMPING CENTER, INC., and Bobby Dewayne Talbert.

No. 7721SC198.

Court of Appeals of North Carolina.

May 16, 1978.

David B. Hough, Winston-Salem, for plaintiff.

Hatfield & Allman by J. W. Armentrout, Winston-Salem, for defendant.

MARTIN, Judge.

This appeal deals solely with the determination of damages in the instant case and, through the several assignments of error brought forward by defendant, raises the question of the propriety, upon the evidence presented, of submitting to the jury the issue of damages without restriction as to the alternative methods to be considered in computing the same.

In the instant case, plaintiff sought to place before the jury three alternative methods for computing the measure of damages— loss of profits, loss of use of the motor home and diminution in value of the motor home. Defendant, through its motions for directed verdict, attempted to limit the jury's consideration of these various methods of computation to diminution in value only. These motions were denied and the issue of damages was submitted to the jury with a general instruction encompassing each of the three alternative methods of computing damages.

Defendant now contends that the trial court erred in denying its motion for a directed verdict and allowing the jury to consider possible lost profits as an element of damages. It argues that plaintiff's evidence provides an insufficient basis from which lost profits can be reasonably determined. We are constrained to agree.

Our courts have often held that lost profits are a proper subject of recovery for breach of contract where it is reasonably certain that such profits would have been realized except for the breach, the amount of such profits can be ascertained and measured with reasonable certainty from the evidence presented, and such profits may be reasonably supposed to have been within the contemplation of the parties at the inception of the contract. Perkins v. Langdon, 237 N.C. 159, 74 S.E.2d 634 (1953); Gouger & Veno, Inc. v. Diamondhead Corp., 29 N.C.App. 366, 224 S.E.2d 278 (1976). Evidence of these essential factors must be sufficiently specific so as to provide a factual basis from which damages can be reasonably determined; evidence permitting no more than speculation or conjecture is insufficient. Weyerhaeuser Co. v. Supply Co., 292 N.C. 557, 234 S.E.2d 605 (1977). Tillis v. Cotton Mills, 251 N.C. 359, 111 S.E.2d 606 (1959).

In the instant case, plaintiff's evidence of lost profits consisted of the testimony of Jack Ferner, an expert in small business cost accounting. His projections as to probable lost profits sustained by plaintiff as a result of the unavailability of the motor home were based upon such factors as the probable success of plaintiff's dogs at shows, the increased hiring out of plaintiff's dogs for stud services as a result of these successes, and the ability of plaintiff's female dogs to bear litters of puppies to be sold in a general market susceptible to fluctuations. We are of the opinion that this evidence provides no basis for an award of damages for lost profits, since any estimate of plaintiff's expected profits must on the evidence presented, be based solely upon speculation. Thus, it was error to allow the jury to consider possible lost profits as an element of damages and the verdict returned must be vacated.

In reaching this decision, we are not inadvertent to the competent evidence of other pecuniary losses sustained by plaintiff as a natural and probable result of defendant's breach, including the expense of hiring professional dog handlers and the diminution in fair market value of the motor home as a result of defendant's failure properly to repair it. However, because an improper element of damages was placed before the jury and the jury's verdict provides no basis for ascertaining which of the several methods of computing damages it relied upon, a partial new trial as to the issue of damages must be awarded. In this respect, we note that an appellate or trial court has discretionary authority to award such a partial new trial when it is clear that the error in assessing damages did not affect the determination of the issue of liability. See Robertson v. Stanley, 285 N.C. 561, 206 S.E.2d 190 (1974); Crawford v. Manufacturing Co., 88 N.C. 554 (1883).

For the reasons indicated, the judgment is vacated and the cause is remanded for a new trial on the issue of damages.

Remanded for partial new trial.

PARKER and ARNOLD, JJ., concur.