Robeson County NcArchives Court.....Noah Mercer, Owen Clinton V. 1819
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Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 13, 2009, 5:07 pm

Source: Nc Reports
Written: 1819

Owen Clinton v. Noah Mercer

From Robeson

May Term 1819

A. agrees to deliver to B. certain specific articles by a particular day, for 
which B. agrees to pay him a certain price. A. neglects to deliver them, for 
which he is sued. Although upon the trial it does not appear that B. has 
sustained any actual damage, he is entitled to recover nominal damages.

For the breach of all valid contracts, when proved to the satisfaction of a 
Jury, the law requires damages to be assessed.

This was an action on the case, founded upon the undertaking of the Defendant 
to deliver to the Plaintiff five hundred tar barrels by a particular day. The 
Defendant pleaded, non assumpsit; and upon the trial, it appeared in evidence 
that the defendant, in the fall of 1815, agreed to deliver to the Plaintiff by 
the first day of March then next ensuing, five hundred tar barrels, for each 
of which the Plaintiff agreed to pay him, upon the delivery of the barrels, 
thirty-five cents. The plaintiff had prepared several tar kilns ready for 
burning by 1 March, except as to the logging and turfing of them, which kilns 
would have yielded several hundred barrels of tar, but not as many as five 
hundred.

The defendant failed to deliver the barrels, or any of them, by 1 March, nor 
did he deliver them afterwards. The Plaintiff did not apply for them, nor 
offer to pay the Defendant for them, until some time in May following, when he 
went to the Defendant's house to demand the barrels, and the Defendant being 
from home, he informed the Defendant's wife that he had come to demand the 
barrels. The price of tar during the month of March, was one dollar and forty 
cents per barrel. It soon afterwards fell to one dollar, and continued at that 
price for a considerable time. 

The Court instructed the Jury, that if they believed the Plaintiff had not 
sustained any damage by the failure of the Defendant to deliver the barrels by 
1 March, they might find a verdict for the Defendant. If they were of opinion 
that he had sustained any damage, they should find for the Plaintiff. The Jury 
found for the Defendant; and a rule was obtained to shew cause why a new trial 
should not be granted, on the ground of misdirection by the Court; which rule 
was sent to this Court.

Taylor, Chief Justice: For the breach of all valid contracts, when proved to 
the satisfaction of a Jury, the law requires damages to be assessed; which are 
greater or less, according to the injury sustained by the party. But whenever 
a non-performance is established, although no real loss be proved, nominal 
damages, at least, ought to be given. The Court cannot, therefore, approve of 
the instructions given by the Judge to the Jury, that if they believe the 
Plaintiff had not really sustained any damage by the failure on the part of 
the Defendant to deliver the barrels on the day, they might find a verdict for 
the Defendant. On the contrary, the Jury were bound to find a verdict for the 
Plaintiff upon a breach of the contract being established. 

The rule for a new trial must be made absolute.


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