N.C.P.I.—Civil 747.40

NOTE WELL: Use this instruction where the plaintiff

has elected to retain the dwelling and seeks damages

for the breach of warranty. Where the plaintiff has

elected rescission, see N.C.P.I.-Civil 747.30, 747.35

and 747.36.

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. 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.

A person damaged 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.

In determining the damages, you should:

[(1) first, determine what the reasonable market value of

(identify dwelling) would have been at the time of [purchase]

[possession] if it had been constructed so that it met the standard of

workmanlike quality prevailing at the time and place of construction, and

(2) second, determine what the reasonable market value of

(identify dwelling) was at the time and place of construction in its actual

condition, and

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

and add to the difference all incidental and consequential damages, if

any, sustained by the plaintiff.]1

[(Alternatively), you may award the plaintiff the reasonable cost of

repairs necessary to make (identify dwelling) meet the standard of

workmanlike quality2 prevailing at the time and place of construction. To

this amount add all incidental and consequential damages, if any,

sustained by the plaintiff.]

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 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.