Gouger & Veno, Inc. v. Diamondhead Corp. , 29 N.C. App. 366 ( 1976 )

224 S.E.2d 278 (1976) 29 N.C. App. 366

GOUGER & VENO, INC.
v.
DIAMONDHEAD CORPORATION.

No. 7620SC8.

Court of Appeals of North Carolina.

May 5, 1976.

Seawell, Pollock, Fullenwider, Van Camp & Robbins, P. A., by P. Wayne Robbins, Southern Pines, for plaintiff-appellant.

Boyette & Boyette, by M. G. Boyette, Jr., Carthage, for defendant-appellee.

BRITT, Judge.

By its sole assignment of error, plaintiff contends the court erred in not instructing the jury on, and submitting the issue as to, actual damages. We find no merit in the contention.

The specific question presented is whether plaintiff introduced sufficient evidence to sustain its claim for loss of profits. Plaintiff argues, and we agree, that prospective profits, "prevented or interrupted by breach of contract, are properly the subject of recovery when it is made to appear (1) that it is reasonably certain that such profits would have been realized except for the breach of the contract, (2) that such profits can be ascertained and measured with reasonable certainty, and (3) that such profits may be reasonably supposed to have been within the contemplation of the parties, when the contract was made, as the probable result of a breach." Perkins v. Langdon, 237 N.C. 159, 171, 74 S.E.2d 634, 644 (1953).

In 22 Am.Jur.2d, Damages, § 296, pp. 392-393, we find: "Where the plaintiff sues for profits lost because of the refusal of the defendant to permit him to complete a contract, he has the burden of proving such profits, including the constituent elements entering into the cost to him of doing the work." Quoted with approval in Peaseley v. Coke Company, 282 N.C. 585, 606, 194 S.E.2d 133, 147 (1973).

We think plaintiff failed on requirement (2) stated above and that it did not present sufficient evidence for the jury to determine with reasonable certainty an amount plaintiff should recover for lost profits.

Plaintiff presented evidence tending to show: After the agreement was signed on 17 January 1973, plaintiff had five people report for work the following Monday. Later on it probably had as many as fifteen assigned to the job, but at some point the number was reduced to thirteen, which was the number on the job in early May 1973. The number of employees plaintiff had working on the job varied from time to time, anywhere from twelve to fifteen after the work "got going". After May plaintiff discharged all but two of its employees.

Plaintiff determined its profits on its account with defendant for four months of 1973 as follows: In February the total bill was $4,152.10; plaintiff's expense for labor and "other costs" amounted to $3,615.00 leaving a profit of $537.10. In March the total bill was $3,806.00 with a profit of $842.00. In April the total bill was $12,104.16 with a profit of $4,582.16. In May the total bill was $10,225.12 with a net profit of $4,194.12.

Plaintiff's evidence fell far short of providing the jury with information upon which they might determine loss of profits with reasonable certainty. For example, plaintiff presented no evidence tending to show what its wage scale for the remaining months of 1973 would have been and how it would have compared with the four preceding months; how its "other costs" in determining profits for the remainder of 1973 would have compared with the four previous months; and how many employees plaintiff could have counted on to perform work during the remainder of the year. Had the jury attempted to project profits on a percentage basis, they would have found no solid pattern as the profit for February was approximately 13 percent of the gross, for March approximately 22 percent, for April approximately 38 percent, and for May approximately 41 percent.

We hold that the trial court did not err in limiting plaintiff's recovery to nominal damages.

No error.

Judges VAUGHN and ARNOLD, JJ., concur.