Robbins v. C. W. Myers Trading Post, Inc., 395
| Decision Date | 14 January 1960 |
| Docket Number | No. 395,395 |
| Citation | 251 N.C. 663,111 S.E.2d 884 |
| Parties | J. G. ROBBINS and wife, Faith P. Robbins v. C. W. MYERS TRADING POST, INC. |
| Court | North Carolina Supreme Court |
Leake & Phillips and W. Z. Wood, Winston-Salem, for plaintiffs.
Craige, Parker, Brawley, Lucas & Hendrix, Winston-Salem, for defendant.
Witness A. E. Gentry, an experienced building contractor, testifying for plaintiffs, gave as his opinion that the value of the bulding on the date possession was delivered to plaintiffs was from $7,500 to $8,000. Over objection of defendant he testified it would have been worth from $9,000 to $9,500 had it been constructed according to contract. On cross-examination he stated: 'I don't know a thing about the Endsley house, I never have seen it.' Defendant moved to strike Gentry's testimony concerning value. The court overruled the motion to strike. This was error.
The contract provides that the building 'shall be exactly like house built on Endsley Ave. house #13' (with minor exceptions) and shall be constructed of 'the same kind of material used in Endsley Ave. house #13.' These are the plans and specifications. Plaintiffs offered no evidence whatsoever as to the plan of or materials used in the Endsley Avenue house. The witness Gentry never saw it and was not qualified to testify what the value of the building would have been if constructed 'exactly like' and of the 'same kind of material' as the Endsley Avenue house. A witness is not competent to testify to a fact beyond his personal knowledge or to base an opinion upon facts of which he has no knowledge. Rankin v. Helms, 244 N.C. 532, 540, 94 S.E.2d 651; Warren v. Pilot Life Insurance Co., 215 N.C. 402, 404--405, 2 S.E.2d 17; Harrison v. North Carolina Railroad Co., 194 N.C. 656, 660, 140 S.E. 598.
Defendant insists that its motion for nonsuit should have been allowed since there was no competent evidence on the part of plaintiffs as to the extent, if any, of their damages and no evidence upon which the jury could have based an award of damages. Plaintiffs' evidence makes out a prima facie case of breach of contract with respect to the quality of workmanship. 'Where plaintiff proves breach of contract he is entitled at least to nominal damages.' Sineath v. Katzis, 218 N.C. 740, 756, 12 S.E.2d 671, 681. See also Tillis v. Calvine Cotton Mills, Inc., N.C., 111 S.E.2d 606. The court correctly overruled the motion to nonsuit.
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State v. Adcock
...law of evidence that ordinarily a witness may only testify concerning matters within his own personal knowledge. Robbins v. Trading Post, 251 N.C. 663, 111 S.E.2d 884 (1960). In the instant case, the fact of defendant's own awareness or lack of awareness of his wife's death was beyond the r......
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Ford v. All-dry Of The Carolinas Inc
...in value.'Hayworth v. Brooks Lumber Co., 65 N.C. App. 555, 558, 309 S.E.2d 572, 574 (1983) (quoting Robbins v. Trading Post, Inc., 251 N.C. 663, 666, 111 S.E.2d 884, 887 (1960)). As All-Dry correctly points out, "[i]f a construction contract provides that the contractor will repair, replace......
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Crescent University City Venture, LLC v. AP Atlantic, Inc.
...of a building or construction contract is that a party is entitled to have what he contracts for or its equivalent." Robbins, 251 N.C. at 666, 111 S.E.2d at 887; see also Schonfeld v. Hilliard, 218 F.3d 164, 175 (2d Cir. 2000) ("A plaintiff is seeking [direct] damages when he tries to recov......
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Title Ins. Co. of Minnesota v. Smith, Debnam, Hibbert and Pahl
...to grant a directed verdict for the defendant on the basis of the plaintiff's lack of damages. See Robbins v. C.W. Myers Trading Post, Inc., 251 N.C. 663, 666, 111 S.E.2d 884, 886-87 (1960) (holding denial of nonsuit proper even though plaintiff in breach of contract action had produced no ......
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Chapter 17 CONSTRUCTION DEFECTS IN COMMON INTEREST COMMUNITIES
...313 N.C. 243, 327 S.E.2d 870 (1985); Hartley v. Ballou, 286 N.C. 51, 209 S.E.2d 776 (1974); Robbins v. C.W. Myers Trading Post, Inc., 251 N.C. 663, 111 S.E.2d 884 (1960); Warfield v. Hicks, 91 N.C. App. 1, 11-12, 370 S.E.2d 689, 695 (1988); Kenney v. Medlin Constr. & Realty Co., 68 N.C. App......