Berry v. Hyde County Land & Lumber Co.

AdaMS, J. Tbe defendant insists that tbe complaint and tbe replication are inconsistent; that in tbe former tbe cause of action is ex delicto, and in tbe latter ex contractu; and that tbe issues submitted by tbe court relate, not to tbe tort, but to tbe defendant’s alleged breach of contract. At tbe trial tbe defendant tendered issues drafted upon allegations in tort, and contends here that tbe plaintiffs have abandoned the cause of action stated in tbe complaint and now rely solely upon tbe replication. It is true, as argued by tbe defendant, that a party may not be allowed in tbe course of litigation to maintain radically inconsistent positions, or to state one cause of action in the complaint and in the replication another which is entirely inconsistent. C. S., 525; Lindsey v. Mitchell, 174 N. C., 458. But in our opinion this principle is not available to-the defendant as ground either for a nonsuit or for a new trial. As we understand the contract, the pleadings, and the evidence, particularly the testimony of the defendant’s manager, it was in the contemplation of tbe parties that tbe defendant should construct or cause to be constructed the road called for in the contract; and the allegation and contention that the defendant wrongfully interfered with the plaintiffs’ right of ingress and egress is ultimately dependent on the question whether tbe defendant complied with its contract as to tbe construction of the road. In the complaint tbe plaintiffs allege that the defendant wrongfully increased tbe width and depth of the canal, and thereby interfered with their right of ingress and egress “without providing plaintiffs with a passway to their land.” Since tbe plaintiffs expressly agreed to tbe change in the canal, tbe allegation, when reasonably construed, appears to mean that the defendant interfered with the right of ingress and egress by failing to construct the road described in the contract. In the determination of this ultimate question it is immaterial, so far as tbe issues are concerned, whether tbe alleged cause of action be referred to technically as ex delicto or ex contractu. We think, therefore, that his Honor properly declined to dismiss the action as in case of nonsuit. If there is a variance between the complaint and the replication, such variance may be a proper subject for special instructions, but is not a valid cause for nonsuit. Edwards v. Erwin, 148 N. C., 433. *387 Tbe defendant, however, is entitled to a new trial for error in bis Honor’s instructions as to tbe third and fourth issues. The burden upon each of these issues was on the plaintiffs. Even if the answer to the first and second issues entitled the plaintiffs to nominal damages, still upon them rested the burden of showing by the greater weight of the evidence the quantum, of compensatory damages, if any, to which they were entitled. The learned judge who tried the case inadvertently failed clearly to define the rule for the admeasurement of damages as to the crops or the land. For breach of contracts or injuries to' property the true measure of damages should be set forth with such degree of clearness and certainty that the jury will not be confused or misled. 17 C. J., 1061; 8 R. C. L., 661; Coles v. Lumber Co., 150 N. C., 190; Cherry v. Upton, 180 N. C., 1. Neither the instruction concerning “serious damage to the crops” nor the instruction concerning the “material and serious damage or material depreciation of the value of the land” embodies a clear statement of the rule, and it is impossible to know whether the damages were or were not properly awarded. The jury should clearly understand whether the damages to be assessed on the fourth issue are permanent or temporary in character, and in either event the proper rule should be applied. Moreover, the fourth issue should be framed so as to show definitely, as the evidence and pleadings may warrant, whether the damages are permanent or recurring. Ridley v. R. R., 118 N. C., 996; Parker v. R. R., 119 N. C., 686; Brown v. Chemical Co., 165 N. C., 421. It is also doubtful whether the jury comprehended the instruction that his Honor intended as to the burden of proof, especially on the fourth issue. Since a new trial is granted for the reasons assigned, it is unnecessary to discuss the several exceptions relating to the admission and rejection of evidence. New trial.