#### FIRST NATIONAL PICTURES DISTRIBUTING CORPORATION v. H. P. SEAWELL.

(Filed 1 November, 1933.)

1. Appeal and. Error J c—

Where a jury trial is waived the findings of fact by the trial judge, supported by evidence, are conclusive on appeal.

2. Contracts F c—

While the injured party is under duty to use ordinary care to minimize the loss occasioned by the injuring party’s breach of contract, the burden is on the injuring party to prove failure of the injured party to exercise such care.

Civil actioN, before Daniels, J., at May Term, 1933, of Bertie.

Tlie plaintiff instituted tins action in the General County Court of Bertie County, alleging the breach of a rental contract of certain films or photoplays. The defendant denied the breach and alleged that the contract had been breached by the plaintiff.

A jury trial was waived by the parties and the cause was heard by Judge F. D. Winston, who found the facts and rendered judgment that the plaintiff recover of the defendant the sum of $805.00. There was evidence to support the findings and judgment. The defendant filed certain exceptions to the judgment and the cause was heard in the Superior Court by his Honor, F. A. Daniels. The record shows the following: “Upon hearing the appeal, the court overruled all exceptions taken by the defendant upon the trial in the General County Court, except the exception of defendant to the measure of damages, the court stating that in its opinion there was error in awarding the amount of damages recovered in that it was the duty of plaintiff to offer evidence in mitigation of damages under the facts arising in this case.” Thereupon the trial judge awarded a new trial and the plaintiff appealed.

J. A. Pritchett for plaintiff.

J. H. Matthews for defendant.

Brogden, J.

In suits based upon breach of contract, upon which party does the law impose the burden of offering evidence tending to show mitigation of damages?

A jury trial having been waived in the county court, the judge thereof found the facts and pronounced judgment thereon. There is evidence to support such findings, and consequently they are conclusive upon appeal to the Supreme Court. Caldwell County v. George, 176 N. C., 602, 97 S. E., 507; Mfg. Co. v. Lumber Co., 178 N. C., 571, 101 S. E., 214.

*360Tbe law commands that a person injured by tbe wrongful and negligent act of another is required to use ordinary care and prudence to protect himself from loss, or, as sometimes stated in the decisions, to minimize the loss. Smith v. Lumber Co., 142 N. C., 26, 54 S. E., 788; Advertising Co. v. Warehouse Co., 186 N. C., 197, 119 S. E., 196; Mills v. McRae, 187 N. C., 707, 122 S. E., 762; Gibbs v. Tel. Co., 196 N. C., 516, 146 S. E., 209. It has also been held that the burden is upon the party committing the injury to offer evidence in mitigation of damages. A succinct statement of the principle is to be found in Gibbs v. Tel. Co., 196 N. C., 516, as follows: “In an action for tort committed or breach of contract without excuse, it is a well settled rule of law that the party who is wronged is required to use due care to minimize the loss. . . . The burden is on defendant of showing mitigation of damages.” See Monger v. Lutterloh, 195 N. C., 274, 142 S. E., 12. Therefore, while the duty is imposed upon the injured party to use ordinary care and prudence to minimize his damages, nevertheless the burden is upon the injuring party to offer evidence tending to show such breach of duty or failure to exercise the requisite degree of care and prudence to reduce and minimize the loss complained of.

Reversed.