Marsico v. Adams , 47 N.C. App. 196 ( 1980 )

266 S.E.2d 696 (1980)

Ernest MARSICO d/b/a Mackie Building & Supply Company
v.
Fred M. ADAMS and wife, Irene Adams.

No. 7925SC1123.

Court of Appeals of North Carolina.

June 3, 1980.

West, Groome & Correll, by H. Houston Groome Jr. and Edward H. Blair Jr., Lenoir, for plaintiff-appellee.

Wilson, Palmer & Cannon, by David T. Flaherty Jr. and W. C. Palmer, Lenoir, for defendants-appellants.

HILL, Judge.

Defendants properly bring forth an argument in their appellate brief and state in part that, ". . . at least nominal damages should be awarded by way of a setoff. . . ." Defendants base their argument on their assignment of error # 13 and exception # 28. When we look to the record, however, no exception # 28 is apparent.

Appellate Rule 10(b) states that,

Each exception shall be set out immediately following the record of judicial action to which it is addressed . . . . Exceptions set out in the record on appeal shall be numbered consecutively . . . .

The Rules of Appellate Procedure are mandatory. Craver v. Craver, 298 N.C. 231, 236, 258 S.E.2d 357 (1979). Failure to follow the Rules subjects defendants' appeal to dismissal. We have decided, however, to treat the purported appeal as a petition for writ of certiorari and allow it in order that we may decide the case on its merits.

The trial court in its conclusions stated that the plaintiff breached the contract between the parties by failing ". . . to perform the work specified in the contract in a workmanlike manner." The trial court further concluded that plaintiff's breach was substantial, but found as fact, "[t]hat [d]efendants suffered no financial loss by reason of [p]laintiff's failure to perform the work required by the contract in a workmanlike manner." No exception was taken to any findings of fact, conclusions of law, or to the judgment.

Defendants argue in their appellate brief that nominal damages, at least, should have been awarded to them. We agree. "A party is entitled to nominal damages if the jury [in this case, the trial judge] find that there has been any injury to his legal rights." Hutton v. Cook, 173 N.C. 496, 499, 92 S.E. 355, 356 (1917).

Error by the trial judge in failing to grant nominal damages is not reversible error in this case, however. Nominal damages are ". . . a small trivial sum. . ."; a ". . . trifling amount. . ." that is only awarded in recognition of a technical injury. See Hairston v. Greyhound Corp., 220 N.C. 642, 644, 18 S.E.2d 166 (1942). Such a trivial sum, that is awarded for technical rather than substantial injury, does not in this circumstance constitute prejudicial and reversible error. Accord see Restatement of Contracts, § 328, Comment b (1932).

We do find, however, that this case must be modified. The trial court taxed the costs of the action to the defendants. Nominal damages, which defendants were entitled to, ". . . have been described as ``a peg on which to hang costs.'" Hutton, supra, 173 N.C. at p. 499, 92 S.E. at p. 356. Because the court found that plaintiff was in breach of the contract, and because defendants were entitled to nominal damages, the trial court should have taxed the costs to the plaintiff.

Modified and Affirmed.

ROBERT M. MARTIN and ARNOLD, JJ., concur.