Metcalf v. Palmer , 61 N.C. App. 136 ( 1983 )

EAGLES, Judge.

Defendants first assign as error the trial court’s denial of their motion for a directed verdict made at the end of plaintiffs’ presentation of evidence. In granting or denying such a motion, the trial court must decide whether the evidence when considered in the light most favorable to the non-movant party is sufficient for submission to the jury. Sessoms v. Roberson, 47 N.C. App. 573, 268 S.E. 2d 24 (1980). In the present case the plaintiffs presented evidence that defendants Palmer, Palmer and Coffey hired defendant Brooks to sell the property later purchased by plaintiffs, that defendant Brooks was in possession of defendants Palmer’s, Palmer’s and Coffey’s easement contract containing the paving clause during the time he sold the five lots, that defendant Brooks made representations to plaintiffs that the other defendants would build and pave a road adjoining the purchased property, that the road was not built by defendants and that plaintiffs were forced to build the road at their own expense. We hold that plaintiffs presented sufficient evidence of a breach of promise on the part of defendants to allow the trial court to submit the issue to the jury. We therefore reject defendants’ first assignment of error.

Defendants next assign as error the trial court’s instruction to the jury as to the measure of damages. The trial court instructed the jury that

[A] party injured by a breach of contract is entitled to be placed in as far as may be possible, in the same position that they would have occupied if the contract had been performed. Damages are reasonably foreseeable, the Court instructs you, if they are ones that arise naturally or according to the usual course of things from breach of a contract. Damages are reasonably foreseeable if they may be fairly supposed to have been within the contemplation of the parties at the time the contract was entered into and as probable result of breach of a contract. As to the issue on damages, the Court instructs you that the burden of proof again, as previously instructed, is upon the Plaintiffs; which means that the Plaintiffs must prove by the greater weight of the evidence that the Plaintiffs have suffered damages by the breach of contract of the Defendants and secondly, what amount are said damages. The Plaintiffs contend they are entitled to recover damages as a result of breach of the contract. The Defendants disagree. I instruct you that if you reach this issue, you are not to be governed by the amount of damages suggested by the parties or their attorneys.

We find no error in the trial court’s instruction as to the measure of damages, since plaintiffs also presented sufficient evidence of monetary damages to allow the issue to go to the jury. Plaintiffs proved that it cost them $6,678.47 to have the roadway built and paved. Two of the plaintiffs testified that each of the five plaintiffs paid one-fifth of the total cost of building and paving the road. In addition, plaintiff Teague testified that defendants had originally collected $1,000.00 from him to be used to cover his portion of the cost of the road defendants had promised to build. The road was built at the location described in the easement contract and contained approximately the same square footage as the road which defendants obligated themselves to build under that same contract. We find no merit in defendants’ second assignment of error.

For the above reasons we also reject defendants’ argument that the trial court erred in refusing to set aside the verdict and in signing the judgment.

In the trial below we find

No error.

Judges Hedrick and Johnson concur.