N.C.P.I.—Civil 741.60

The (state number) issue reads:

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

from the defendant for breach of warranty?"

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.1 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.

A person injured by a breach of warranty is entitled to be placed,

insofar as this can be done by money, in the same position he would

have occupied if there had been no breach of the warranty.

You may determine these damages this way:2

(1) first, find what the value of the (name good) would have

been at the time and place of acceptance if it had been as it was

warranted to be, and

(2) second, find what the value of the (name good) actually

was at the time and place of acceptance, and

(3) third, subtract the second figure from the first figure,3

and add to the difference all incidental and consequential damages if

any, sustained by the plaintiff.4

(Incidental damages recoverable by a buyer include expenses

reasonably incident to delay or other breach.)

(Consequential damages recoverable by a buyer include any loss

resulting from general or particular requirements and needs of which the

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

reasonably have been prevented by the purchase of substitute goods or

otherwise, and injury to person or property proximately resulting from any

breach of warranty.)

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

evidence presented in the case. 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 upon 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 warranty, 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.