Frank J. CLIFFORD, and Dolorese R. Clifford
v.
RIVER BEND PLANTATION, INC., J. Frank Efird, President, River Bend Plantation, Inc., and J. Frank Efird, Individually and as President of River Bend, Inc.
No. 813SC386.
Court of Appeals of North Carolina.
February 2, 1982.*355 Perdue & Voerman by David P. Voerman, New Bern, for plaintiffs-appellees.
White, Allen, Hooten, Hodges & Hines by John M. Martin and Jeffress, Morris, Rochelle & Duke by A. H. Jeffress, Kinston, for defendants-appellants.
CLARK, Judge.
The trial court treated the plaintiff with undue munificence. The judgment based on the jury verdict awarded the plaintiffs $100,075, and they still have the house and lot for which they paid $40,000 in April 1976. The recovery did not include punitive damages. Plaintiffs did not appeal from the directed verdict for defendants on the claim for unfair and deceptive trade practices and for punitive damages.
The jury verdict included $7,475 on the breach of warranty claim (Issues 1, 2 and 3), for which the measure of damages, according to jury instructions, was the difference between the actual market value of the property and the market value of the property as warranted; also included was $40,000 on the fraud claim (Issues 7 and 8), for which the measure of damages, according to jury instructions, was the difference between the actual market value of the property and the market value of the property *356 as falsely represented. The warranty and the false representation was the samethat the property was not subject to flooding. And the measure of damages for both claims was the samethe difference between the actual market value of the property and the market value if the property had not been subject to flooding. The jury verdict on these two claims, though inconsistent as to amount, awarded plaintiffs a double recovery. Then, after the awards of damages on these two claims and after an award of $6,600 on the breach of warranty for workmanlike quality claim (Issues 4, 5 and 6), for the total sum of $54,075, the jury awarded the plaintiffs an additional $46,000 on the breach of repurchase claim (Issues 9, 10, and 11). It is obvious that plaintiffs should not have recovered such damages for breach of the repurchase agreement claim after recovering $54,075 and retaining the house and lot, for which they paid only $40,000.
Much of the confusion in regard to the damages awarded undoubtedly stems from the court's instructions to the jury. The trial court failed to explain and apply the law to the evidence as required by G.S. 1A-1, Rule 51. It is the duty of the court to explain the law and apply it to the evidence presented on all substantial features of the case. The failure to do so constitutes prejudicial error for which the aggrieved party is entitled to a new trial. Board of Transportation v. Rand, 299 N.C. 476, 263 S.E.2d 565 (1980); Investment Properties v. Norburn, 281 N.C. 191, 188 S.E.2d 342 (1972); Owens v. Harnett Transfer, 42 N.C.App. 532, 257 S.E.2d 136 (1979).
The record reveals that in the charge to the jury the trial court, after summarizing the evidence, read the eleven issues to the jury and then in instructing on each of the eleven issues stated abstract principles of law. The record is void of any instructions to the jury as to what facts, if found by them to be true, would justify answering the issues submitted to them in the affirmative or negative. At no point in the charge did the trial judge explain to the jury the relationship between the evidence presented at trial and the issues involved. This error was prejudicial to the defendant and requires a new trial.
We discuss other errors for the limited purpose of providing some guidance to the trial court on retrial.
The trial court erred in the instructions to the jury in allowing damages on both the breach of warranty and the fraud claims.
As the trial judge instructed, the measure of damages in a tort action for fraud is the same as in contract actions for breach of warranty; that is, the difference between the actual value of the property as it exists and its value if it had been as represented. A plaintiff may allege and prove alternative causes of action, but he must elect to pursue only one to judgment. 37 Am.Jur.2d Fraud and Deceit § 353 (1968); D. Dobbs, Remedies, "Damages for Deception," § 9.2 (1973). By submitting both the issue on false representation and the issue on breach of warranty to the jury, the court allowed plaintiffs to recover twice for the same damages.
It is noted that plaintiffs alleged special damages, damages to personal property resulting from flooding. On retrial the issues relating to the breach of warranty claims or to the fraud claim, whichever they elect to pursue, should include an issue or issues relating to the personal property damage.
On the claim for breach of the repurchase agreement the jury awarded damages (Issue 11) in the sum of $46,000. There was no evidence to support this award. When the jury reached this issue it had already awarded damages that would compensate plaintiffs for any breach of warranty or false representation relative to flooding and for breach of warranty of workmanlike quality, and thus the answer to this damage issue (Issue 11) should not include any award based on the decreased value of the property because of flooding. On retrial the burden is on the plaintiff to prove that he was damaged by the breach of the repurchase agreement and the extent of such damage.
*357 Other assignments of error are not discussed since they may not recur upon retrial.
New trial.
WHICHARD and BECTON, JJ., concur.