DAMAGES; OUT OF POCKET RULE

If under the court’s instructions, you find that plaintiff is entitled to a verdict against defendant, you must then award plaintiff damages, if any, [proximately] [legally] caused by the misrepresentation upon which you base your finding of liability.

The amount of such award shall include:

• The difference, if any, between the actual value of that with which the plaintiff parted and the actual value of that which he received. This is sometimes referred to as the “out of pocket loss.”

Actual value means market value. Market value means the highest price, in terms of money, for which real or personal property would sell on the open market; the seller having a reasonable time within which to sell, and being willing to sell but not forced to do sop the buyer being ready, wiling and able to buy but not forced to do so, and having a reasonable time and full opportunity to investigate the property in question and to determine its condition, suitability for use, and all of the things about the property that would naturally and reasonably affect its market value.

• In addition to his “out of pocket loss,” if any, plaintiff is entitled to recover any additional damage arising from the particular transaction, including any of the following:
• [Amounts actually and reasonably expended in reliance upon the misrepresentation;]
• [An amount which will compensate the plaintiff for loss of use and enjoyment of the property to the extent that any such loss was [proximately] [legally] caused by the misrepresentation;]
• [An amount which will compensate him for profits or other gains which might reasonably have been earned by use of the property had he retained it;]
• [An amount which will compensate him for any loss of profits or other gains which were reasonably anticipated, and would have been earned by him for the use or sale of the property, had it possessed the characteristics attributed to it by the party making the misrepresentation; provided that lost profits from the use or sale of the property shall be recoverable only if, and only to the extent that, all of the following apply;
• The plaintiff acquired the property for the purpose of using or reselling it for a profit;
• The plaintiff reasonably relied upon the misrepresentation in entering into the transaction and in anticipating profits from the subsequent use or sale of the property; and
• Any loss of profits for which damages are sought under this paragraph have been [proximately] [legally] caused by the misrepresentation and the plaintiffs reliance on it.]

NEV. J.I. 9.07

BAJI 12.56