N.C.P.I.—Civil 747.35

NOTE WELL: Use this instruction where the plaintiff

has elected to rescind the purchase or the contract to

purchase the dwelling and contends he is entitled to

special damages. Where the plaintiff has elected to

retain the dwelling and seek damages, see N.C.P.I.-

Civil 747.40.

The (state number) issue reads:

"What amount of money damages, if any, is the plaintiff entitled to

recover from the defendant for breach of warranty?"

You will answer this issue only if you have answered the (state

number) issue(s) "Yes" in favor of the plaintiff.

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 warranty.

Where a buyer of a dwelling has (justifiably)1 rescinded his

purchase of a dwelling because of the builder's breach of the implied

warranty of workmanlike quality, the buyer may recover2

(a) so much of the purchase price as has been paid, and

(b) incidental damages and consequential damages proximately

resulting from the seller's breach.

Incidental and consequential damages include

[expenditures reasonably made by the plaintiff in preparing to

perform the contract]3

[expenditures reasonably made by the plaintiff in response to the

defendant's breach]

[expenditures reasonably made by the plaintiff for the purpose of

minimizing the injury resulting from the defendant's breach]

[any other loss resulting from the plaintiff's circumstances of which

the defendant knew or should have known at the time of the

contracting, and which the plaintiff could not reasonably have

prevented].

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 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 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 “Zero” in the blank space provided.