Berry v. . Lumber Co. , 183 N.C. 384 ( 1922 )

Plaintiffs were joint owners of a tract of land containing about 525 acres, bounded on the east by the Gibbs canal and on the north by the Poplar Ridge road. Defendant entered into a written agreement with the plaintiffs by which the defendant acquired the right to enter on plaintiffs' land and to widen, deepen, maintain, and use the canal Plaintiffs gave their consent "for the closing by the proper legal authorities of Hyde County of the public road known as the `Poplar Ridge road,' leading from the Juniper Bay road to the eastern line of the canal above mentioned, provided the Juniper Bay road shall be established leading from the point on railroad bed to a road where the railroad bed crosses it along said railroad bed to a point on or near said canal on the Murray farm, and thence on the east side of said canal to the point where the Poplar Ridge road above mentioned now crosses the line of said canal, and which by the terms of this agreement is to be closed." Plaintiffs alleged that defendant wrongfully dug the canal to a depth of 8 feet and extended its width to 40 feet across the Poplar Ridge road and obstructed plaintiffs' right of ingress and egress, without providing a passway to plaintiffs' land; and that defendant has thereby impaired the value of the plaintiffs' land and caused the destruction of their crop. They assess their loss at $6,465. Defendant denied the material allegations of the complaint, and pleaded the contract referred to, and other defenses. Plaintiffs filed a replication alleging a breach of the contract by defendant in failing to construct the road as agreed. The court submitted four issues, based upon the contract, the defendant's alleged breach, and damages to the plaintiffs' (386) crops and land, and these issues were answered in favor of the plaintiffs. Judgment, and appeal by defendant. The defendant insists that the complaint and the replication are inconsistent; that in the former the cause of action is ex delicto, and in the latter ex contractu; and that the issues submitted by the court relate, not to the tort, but to the defendant's alleged breach of contract. At the trial the defendant tendered issues drafted upon allegations in tort, and contends here that the plaintiffs have abandoned the cause of action stated in the complaint and now rely solely upon the replication. It is true, as argued by the defendant, that a party may not be allowed in the 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 the parties that the 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 the defendant complied with its contract as to the construction of the road. In the complaint the plaintiffs allege that the defendant wrongfully increased the width and depth of the canal, and thereby interferred with their right of ingress and egress "without providing plaintiffs with a passway to their land." Since the plaintiffs expressly agreed to the change in the canal, the 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 the issues are concerned, whether the 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.

The defendant, however, is entitled to a new trial for error in (387) his Honor's instructions as to the 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. Ridleyv. R. R., 118 N.C. 996; Parker v. R. R., 119 N.C. 686; Brown v. ChemicalCo., 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.

Cited: Lieb v. Mayer, 244 N.C. 616; Nix v. English, 254 N.C. 420; Clinev. Cline, 258 N.C. 300.

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