N.C.P.I.—Civil 504.42

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 fails to pay the agreed price

as it becomes due [but has accepted the goods] [and the goods conform

to the contract but are [lost] [damaged] within a commercially reasonable

time after the risk of their loss has passed to the buyer] the seller may

recover the agreed price.1

(A buyer accepts goods

[when, after a reasonable opportunity to inspect the goods, he

signifies to the seller that the goods conform to the contract]

[when, after a reasonable opportunity to inspect the goods, he

signifies to the seller that he will take or retain them in spite of their

non-conformity]

[when, after a reasonable opportunity to inspect the goods, he fails

to make an effective rejection]

[when he does any act inconsistent with the seller's ownership].) 2

(Risk of loss passes to a buyer [on his receipt of the goods if the

seller is a merchant.3 A "merchant" means a person who deals in goods

of the kind or otherwise by his occupation holds himself out as having

knowledge or skill peculiar to the practices or goods involved in the

transaction (or to whom such knowledge or skill may be attributable by

his employment of an agent or broker or other intermediary who by his

occupation holds himself out as having such knowledge or skill]4 [on the

seller's tender of delivery to the buyer]5 [state other time for risk of loss

to pass to buyer]6.)

(In addition to the agreed price, the seller may also recover his

incidental damages.7 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].8)

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.