Using the “Best Evidence” of Construction Damages is Required to Ensure Recovery

By Christopher Solop 

Mississippi law requires that a party introduce the "best evidence" available to prove its alleged damages.  The Mississippi Supreme Court has stated the basic rule of proof of damages as follows:

It is absolutely incumbent upon the party seeking to prove damages to offer into evidence the best evidence available [for] each and every item of damage.  If he has records available, they must be produced.  While certainty is not required, a party must produce the best that is available to him.

See Eastland v. Gregory, 530 So.2d 172, 174 (Miss. 1988) (emphasis added).

In applying this rule, the Mississippi Supreme Court held that evidence was insufficient where a party claimed that a buyer had breached its contract to buy a house and the owner had to sell to someone else at a lower price.  The "best evidence" of the sale at the lower price was not introduced because "no records were produced of the sale and event he name of the purchaser was not mentioned."  Id. at 173.  The Court indicated the kind of evidence that would have been "best", observing "[t]here was no contract of sale with the second purchaser offered into evidence, no check for purchase price, no deed, no record whatever, simply the statements by Mr. and Mrs. Gregory [the owner] that the house sold for $175,000.00."  Id. at 175.  The owner also claimed interest paid on a construction loan he had to take out in the amount of "about $4,300.00."  Id. at 174.  Even though a copy of a note was introduced into evidence, the Court ruled that the testimony was in error, stating:

In the first place there was no showing that the Eastland’s breach of the contract in any way necessitated Mr. Gregory borrowing $85,000 to build his new home…  There may have been some damage occasioned by the breach of contract in addition to having to sell the residence for a less sum of money, but no predicate whatever was laid for such assessment by the jury.  A bare conclusory statement by Mr. Gregory that because of the Eastlands’ breach he had to borrow the money hardly suffices.

Id. at 174 (emphasis added).  See also Caver v. Brown, 818 So.2d 376 (Ct. App. Miss. 2002) (citing Eastland); City of New Albany v. Barkley, 510 So.2d 805, 807 (Miss. 1987) ("while the measure of damages need not be perfect, the most accurate and reliable evidence available should be required.")

The rule is very straightforward and has been summed up precisely:

…[T]he highest degree of proof of which a case is susceptible must be produced.  This is the Mississippi rule…  What we rule here is that if basic fact records exist, those records, not opinions as to what they could have been, should form the evidentiary basis for introducing their content into this cause.

See Harrison v. Prather, 435 F. 2d 1168, 1175 (5th Cir. 1971) (emphasis added).

In addition, the Rule 1002 of the Mississippi Rules of Evidence provides that "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by law."  This rule reflects the "best evidence rule."