First Nat. Pictures Distributing Corporation v. Sewell
| Decision Date | 01 November 1933 |
| Docket Number | 134. |
| Citation | 171 S.E. 354,205 N.C. 359 |
| Parties | FIRST NAT. PICTURES DISTRIBUTING CORPORATION v. SEWELL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Bertie County; Daniels, Judge.
Action by the First National Pictures Distributing Corporation against H. P. Sewell. From a judgment granting defendant new trial, plaintiff appeals.
Reversed.
Burden is on injuring party to offer evidence tending to show injured party's failure to exercise requisite care and prudence to minimize loss complained of.
The plaintiff instituted this 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 a 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. 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, of Windsor, for appellant.
J. H. Matthews, of Windsor, for appellee.
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; Morganton Mfg. & Trading Co. v. Lumber Co., 178 N.C. 571, 101 S.E. 214.
The law commands that a person injured by the wrongful and negligent act of another is required to use ordinary care and prudence to protect himself from loss, or,...
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Fed. Deposit Ins. Corp. v. Willetts
...and North Carolina law provides that a plaintiff must take reasonable steps to mitigate its damages. First Nat. Pictures Distributing Corp. v. Sewell, 205 N.C. 359, 171 S.E. 354 (1933);see also Bombardier Capital Inc. v. Lake Hickory Watercraft, Inc., 178 N.C.App. 535, 538–39, 632 S.E.2d 19......
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... ... Reinsurance Corporation ... Brooks, Pierce, McLendon, ... First State Insurance Company and Twin City Fire ... (quoting First Nat'l Pictures Distrib. Corp. v ... Seawell , 205 ... ...
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Duke Energy Carolinas, LLC v. AG Insurance SA/NV
...Inc. v. M&M Builders, Inc., 207 N.C.App. 79, 89, 698 S.E.2d 516, 523-24 (2010) (quoting First Nat'l Pictures Distrib. Corp. v. Seawell, 205 N.C. 359, 360, 171 S.E. 354, 355 (1933)). Defendants' failure-to-mitigate defense is thus focused on Duke's conduct. Defendants' knowledge of CCRs is i......
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Lloyd v. Norfolk S. Ry. Co.
...Ergon and Tucker to demonstrate that Lloyd breached his duty to mitigate his damages. See First Nat'l Pictures Distrib. Corp. v. Sewell, 205 N.C. 359, 360, 171 S.E. 354, 355 (1933); Thermal Design, Inc. v. M & M Builders, Inc., 207 N.C.App. 79, 89, 698 S.E.2d 516, 523–24 (2010). Ergon and T......