N.C.P.I.—Civil 504.36

The (state number) issue reads:

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

from the defendant for breach of contract?"

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, if any, as a result of the breach.

The law provides that where the buyer has breached the contract of

purchase, the seller may recover from the buyer the difference between

the unpaid contract price and the market price1 of the (name good) at the

time and place it was to be tendered to the buyer for acceptance.2

(In addition to the difference between the unpaid contract price and

the market price, the seller may also recover any incidental damages.3

Such incidental damages include any commercially reasonable charges,

expenses or commissions incurred [in stopping delivery of the goods] [in

the transportation, care and custody of the goods after the buyer's

breach] [in connection with the return or resale of the goods].4)

(The buyer is entitled, however, to a credit for any expenses the

seller saved or avoided in consequence of the buyer's breach.)5

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 by reason of the

defendant's breach of contract, 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.