N.C.P.I.—Civil 504.03

The (state number) issue reads:

"What amount of money damages is the plaintiff entitled to recover

from the defendant for breach of contract after the defendant failed to

[deliver] [tender] the (name good)?"

If you have answered the (state number) issue "Yes" in favor of the

plaintiff, the plaintiff is entitled to recover nominal damages even

without proof of actual damages. Nominal damages consist of some

trivial amount such as one dollar in recognition of the technical damage

resulting from the breach.

The plaintiff may also be entitled to recover actual damages. On

this issue the burden of proof is on the plaintiff. This means that the

plaintiff must prove, by the greater weight of the evidence, the amount of

damages sustained as a result of the breach of contract after the

defendant failed to [deliver] [tender] the (name good).

The law provides that where a seller fails to [deliver] [tender] a

(name good) to a buyer, the buyer may cancel the contract but, whether

or not he cancels, he may also recover so much of the purchase price as

has been paid to the seller.1

(plus)

(Select one of the two damage measures below as is

supported by the evidence - do not give both.)

[Cover Measure. A buyer may cover for the seller's non-conforming

delivery by making a reasonable purchase of a substitute (name good) in

good faith and without delay. If you find that the plaintiff reasonably

covered for the defendant's non-conforming [delivery] [tender], the

plaintiff may also recover the difference between the cost of the

substitute (name good) and the contract price.]2

[Contract-Market Measure. A buyer may recover damages for the

seller's failure to make [delivery] [tender]. To determine such damages,

you must first find the market price3 of the (name good) at the place

where [delivery] [tender] was to have occurred and at the time the

plaintiff learned of the defendant's failure to make [delivery] [tender].

From that market price you must subtract the parties' contract price. The

difference is the plaintiff's damages for the defendant's failure to make

[delivery] [tender]4.])

(plus)

(a buyer may also recover incidental damages proximately resulting

from the seller's breach. These include [any commercially reasonable

charges, expenses or commissions in connection with effecting cover]

[any reasonable expense incident to delay or other breach])5

(plus)

(a buyer may also recover consequential damages proximately

resulting from the seller's breach. These include any loss resulting from

general or particular requirements and needs of which the defendant at

the time of contracting had reason to know and which could not

reasonably have been prevented by the plaintiff)6

(less)

(a credit to the defendant for any expenses saved or avoided by the

plaintiff as a consequence of the defendant's breach).7

The plaintiff's damages are to be reasonably determined from the

evidence presented. The plaintiff is not required to prove with

mathematical certainty the extent of the financial injury in order to

recover damages. Thus, the plaintiff should not be denied damages

simply because they cannot be calculated with exactness or a high degree

of mathematical certainty. However, an award of damages must be

based on evidence which shows the amount of the plaintiff's damages

with reasonable certainty. You may not award any damages based upon

mere speculation or conjecture.

Finally, as to this (state number) issue on which the plaintiff has

the burden of proof, if you find by the greater weight of the evidence the

amount of damages sustained by the plaintiff for breach of contract after

the defendant failed to [deliver] [tender] the (name good), then it would

be your duty to write that amount in the blank space provided.

If, on the other hand, you fail to so find, then it would be your duty

to write a nominal amount such as "One Dollar" in the blank space

provided.