Winburne v. Bryan

73 N.C. 47

Opinion

PeaRSON, C. J.

The defendant was in default, by failing to give the written notice which the law made it his duty to give, and the plaintiff was entitled to be indemnified for all loss he had suffered by reason of this default.

We cannot concur with his Honor in the opinion that the plaintiff was only entitled to nominal damages unless he proved that the property sold for less than it would have sold for, if the notice had been given. Hon constat, that the property would have been sold if the defendant had performed the duty required of him by law. On the contrary it is almost an irresistible inference from the evidence, that the plaintiff would have satisfied the execution and prevented a sale, if be had received the required notice, and this is the very purpose of the statute. The execution was for only about $20, the land was worth $300 in cash — plaintiff a short time after sale' gave the purchaser $100 for his bid — that is, paid up the execution cost and $100 over and above; and so he had the ability and would of course have satisfied the execution and stopped the sale if he had received notice.

The plaintiff is out of pocket $100 over and above the amount of the execution, by reason of the default' of the defendant, and why he should not be indemnified to that extent, we are unable to conceive; indeed we incline to the opinion that the jury might have been justified in going farther and making some allowance for the inconvenience of being compelled to raise $100 extra, when, had the defendant done his duty, $20 would have answered; to say nothing of the fact of his being obliged to beg the purchaser to let him have back his lot, at that loss, or of the aggravating circumstance that the plaintiff was sick, taken with a relapse, and on the point of death, which incidents tend to move creditors and officers to give indulgence to debtors,-and would seem to aggravate the default of the officer in forcing a sale without due notice.

We think the amount of damages found by the jury not excessive, and his Honor erred in granting a new trial on that ground.

Pee Cueiam.

Judgment according to verdict in Court below.