{
  "id": 8555037,
  "name": "PERFORMANCE MOTORS, INC. v. ALVA JANE RIGGS ALLEN",
  "name_abbreviation": "Performance Motors, Inc. v. Allen",
  "decision_date": "1971-05-26",
  "docket_number": "No. 714SC219",
  "first_page": "381",
  "last_page": "383",
  "citations": [
    {
      "type": "official",
      "cite": "11 N.C. App. 381"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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  "last_updated": "2023-07-14T15:10:46.806740+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Britt and Graham concur."
    ],
    "parties": [
      "PERFORMANCE MOTORS, INC. v. ALVA JANE RIGGS ALLEN"
    ],
    "opinions": [
      {
        "text": "CAMPBELL, Judge.\nPlaintiff\u2019s Assignment of Error No. 4 is to the refusal of the trial judge to give a requested special instruction on the issue of damages. Plaintiff requested the court to charge on the issue of damages as follows:\n\u201cOrdinarily, the measure of damages for breach of warranty in the sale of personal property is the difference between the market value of the goods at the time and place of delivery, as delivered, and such value if the goods had complied with the warranty. Special damages may be recovered provided they were within the contemplation of the parties at the time the contract was executed, and are properly pleaded. Where the purchaser does not allege the reasonable value of the chattel as warranted and its reasonable value as delivered, the damages are restricted to special damages pleaded and proved.\u201d\nThe trial judge refused to give this special instruction and instead charged the jury on the damage issue as follows:\n\u201cNow, the court instructs you that the measure of damage on this issue, if you come to consider this issue, is as follows: Ordinarily the measure of damage to the contract is the amount of loss which a party to a contract would naturally and probably suffer from its nonperformance and which would in the minds of the parties at the time of its making reasonably and proximately flow from the breach of contract. ...\u201d\nSome several pages later in the charge the trial judge instructed the jury on the measure of damages again as follows:\n\u201cNow, the court instructs you that the measure of damage there is the amount which the parties to a contract or the party, the defendant, would naturally and probably suffer by reason of the non-performance of the contract and which would reasonably and proximately flow from the breach of the contract, that being the measure of damage, that is, ladies and gentlemen, the defendant says and contends that you should reach this issue and you should answer this issue while the plaintiff says you should not reach this issue, but if you do, you should answer this issue in some amount much less than asked by the defendant.\u201d\nThe evidence on behalf of the defendant tended to show numerous defects in the mobile home, particularly with regard to the installation thereof on her property; but there was no evidence that the defendant ever attempted to rescind the contract. In fact, the evidence discloses that the defendant occupied the mobile home for some eight months and until the plaintiff repossessed it by claim and delivery proceedings.\nWe are of the opinion that it was error for the trial judge to refuse the plaintiff\u2019s request for instructions. The charge as given by the trial judge does not comply with the requirements of G.S. 25-2-714(2), which states:\n\u201c (2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount.\u201d\nThe instruction requested by the plaintiff incorporated the statutory elements. The charge as given by the trial judge did not comply with the law on the measure of damages and, in fact, did not give the jury any guidance.\nPlaintiff assigned other errors in the trial, but as a new trial is necessary, we will refrain from discussing those assignments as they may not occur again.\nNew trial.\nJudges Britt and Graham concur.",
        "type": "majority",
        "author": "CAMPBELL, Judge."
      }
    ],
    "attorneys": [
      "Darris W. Koonce for plaintiff appellant.",
      "Brock & Gerrans by Donald P. Brock for defendant ap-pellee."
    ],
    "corrections": "",
    "head_matter": "PERFORMANCE MOTORS, INC. v. ALVA JANE RIGGS ALLEN\nNo. 714SC219\n(Filed 26 May 1971)\nUniform Commercial Code \u00a7 20\u2014 breach of warranty \u2014 damages \u2014 in- \u2022 structions\nIn instructing the jury on damages arising out of a breach of warranty, the trial court erred in refusing to give instructions that complied with the applicable statute. G.S. 25-2-714(2).\nAppeal by plaintiff from Parker, Judge, October 1970 Term, Jones County Superior Court.\nPlaintiff instituted this action seeking to recover the unpaid balance of a promissory note, executed by defendant as part consideration for the purchase of a mobile home and secured by a security interest in the mobile home. Plaintiff all\u00e9ged that defendant had made two monthly payments and has failed, neglected and refused to make any more monthly payments as they became due.\nDefendant counterclaimed, alleging breach of warranty in that the mobile home was unfit and unserviceable for use as a home. Defendant alleged that, as a result of the breach of the implied warranty of fitness, she elected to rescind the contract prior to the institution of -the present action, and sought the return of her down payment on the purchase price.\n\u25a0 Plaintiff repossessed the mobile home through claim and delivery proceedings and sold it at public auction, receiving $9,115.00 for the home. This was applied to the $10,000.00 that plaintiff alleged was still owing and plaintiff stipulated \u2022 that if defendant owes it anything on the mobile home, she would not owe more than $855.00. Defendant stipulated that in no event was she entitled to more than $4,514.23, that being the amount of her down payment and two monthly payments plus expenses incurred in connecting the sewer lines and the electricity.\nThe case was submitted to the jury on issues as follows:\n\u201c1. What amount, if any, is the defendant indebted to the plaintiff?\n2. Did the plaintiff breach the contract as alleged in the answer ?\n3. If so, what amount, if any, is the plaintiff indebted to the defendant?\u201d\nThe jury returned a verdict in favor of defendant, finding that defendant was not indebted to plaintiff, that plaintiff did breach the contract and that plaintiff is indebted to defendant in the amount of $4,000.00 plus interest. From a judgment entered in accordance with the verdict, plaintiff appeals to this Court.\nDarris W. Koonce for plaintiff appellant.\nBrock & Gerrans by Donald P. Brock for defendant ap-pellee."
  },
  "file_name": "0381-01",
  "first_page_order": 405,
  "last_page_order": 407
}