Bowen v. Fidelity Bank

*144 Devin, J. The only question presented by this appeal is whether the court erred in setting aside the verdict on the fourth issue, as a matter of law. Upon this issue the court had charged the jury as follows: “If you have answered the first and second issues ‘Yes,’ then I charge you that if you believe the evidence in this ease, or find the facts to be as it tends to prove, you cannot award to Dr. Bowling more than nominal damages, that is, a small sum of money, for instance, a penny, or dollar, or five dollars, or some such amount. The court further charges you that if you believe the evidence and find the facts to be as they tend to prove, you cannot award to Dr. Bowling any substantial damages because there is no evidence of actual damage suffered by him as a result of the alleged breach of contract.” In a suit for damages for breach of contract, proof of the breach would entitle the plaintiff to nominal damages at least. Hutton v. Cook, 173 N. C., 496. But to entitle him to substantial compensatory damages he must both allege and offer evidence sufficient to satisfy the jury by the greater weight thereof that he has suffered substantial damage, naturally and proximately caused by the breach. This the intervening plaintiff has failed to do. It has been uniformly held by the courts, and stated by text-writers, that compensatory damages are allowed as indemnity to the person who suffers loss, in satisfaction and recompense for the loss sustained. The purpose of the law is to place the party as near as may be in the condition which he would have occupied had he not suffered the injury complained of. 8 R. C. L., 433. As was said by Walher, J., in the leading case of Machine Co. v. Tob. Co., 141 N. C., 284: “Generally speaking, the amount that would have been received if the contract had been kept and which will completely indemnify the injured party is the true measure of damages for its breach.” Plaintiff’s counsel forcefully argued that he was damaged with respect to the balance of the purchase price of the 9.65 acres for which Bowen had given Bowling his note of $1,600. But plaintiff received full value for his land, in that he obtained lots valued at $3,400 and a note of $1,600, which, according to his agreement, was assigned by him to defendant bank as collateral security for Bowling’s notes, and Bowling received credit for the $1,600 in the sale of the land in the reduction of and cancellation of his admitted indebtedness to the bank. He could not, and does not, claim damages on the ground that if the bank had released the 9.65 acres according to contract, the sale of the 9.65 acres so released would have brought a sufficient amount to have reduced the encumbrance on the remaining 22 acres to the extent that some equity therein would have been preserved to him, for the reason that *145 lie alleges the attempted sale of the 9.65 acres under the $1,600 paper was not consummated solely because of a discrepancy in the description of the land, and there was no evidence before tbe court as to tbe value of tbe remaining 22 acres, and as stated by tbe court below, “be does not complain about any injury as to tbe sale of tbe rest of it.” So that, according to tbe pleadings and testimony disclosed by tbe record before us, be would bave been in no better position if tbe contract to release bad been performed, for be would still bave owed bis notes to tbe bank, and tbe bank still would bave held tbe $1,600 note to be credited, on foreclosure, on all tbe Bowling notes, as was eventually done. One of plaintiff’s counsel did ask a question as to tbe value of tbe 22 acres, but tbe witness failed to answer, and no exception was noted nor does it appear what tbe answer to tbe question would bave been. Tbe defendant filed in tbis Court a demurrer ore terms upon tbe ground that tbe complaint failed to allege any damage sustained by tbe intervening plaintiff. While a demurrer would not lie because plaintiff upon bis allegation was entitled at least to nominal damages, it is a well established principle of law that allegation without proof, and proof without allegation, are equally fatal. McCoy v. R. R., 142 N. C., 384. It is not enough for tbe plaintiff Bowling to say be has been damaged. That is a conclusion. He must allege facts sufficient to show that in some material respect be has been damaged and caused to suffer loss. Tbe defendant contends that from reading section 10 of tbe complaint, which contains plaintiff’s averment of damage, tbe inference is permissible that tbe gravamen of tbe injury complained of, as therein stated, was tbe embarrassment of tbe plaintiff, intensified by tbe eviction of Bowen, who bad relied upon tbe representations of tbe plaintiff, and that since Bowen, by tbe verdict of tbe jury and judgment thereon, has been fully compensated, much of plaintiff’s embarrassment has been mollified. We conclude, therefore, that tbe first impression of tbe learned judge who presided over tbe trial of tbis case was tbe correct one, and that plaintiff was only entitled to nominal damages. Tbe order setting aside tbe verdict on tbe fourth issue, as a matter of law, is reversed, and tbe case is remanded for judgment, in accordance with tbe verdict as rendered, that tbe intervening plaintiff, E. H. Bowling, recover of tbe defendant tbe Fidelity Bank tbe sum of one dollar and bis costs of action. Reversed.