84 N.H. 114, 146 A. 641 (1929)
Nine years before the events in question, the plaintiff suffered a severe burn from contact with an electric wire, resulting in substantial scar tissue on the palm of his right hand.1 The defendant, a surgeon, repeatedly solicited the plaintiff's father for the opportunity to perform an operation to remove the scar tissue and graft skin from the plaintiff's chest in its place.2
Before the operation, the plaintiff and his father visited the defendant's office, where the defendant responded to a question about the hospital stay by stating that the boy would be in the hospital three or four days, not over four, after which the boy could go home and return to work with a perfect hand in just a few days thereafter.3 The defendant further stated that he would guarantee to make the hand a hundred per cent perfect hand or a hundred per cent good hand.4
Following the operation, a trial was held in which the jury awarded damages to the plaintiff.5 The trial court subsequently set aside the verdict to the extent it exceeded five hundred dollars, determining those amounts to be excessive.6 The case reached the Supreme Court of New Hampshire.7
Whether the defendant's statements to the plaintiff and his father could be understood as creating a contractual warranty to produce a perfect hand?8
Before the question of contract formation is submitted to the jury, the trial court must decide as a preliminary matter of law whether the words could possibly bear the meaning the plaintiff ascribes to them.9 Statements that on their face guarantee a perfect result, especially when made during repeated solicitations and accepted by the promisees, may be found to create a contractual warranty rather than mere predictions or opinions.10
Yes. The defendant's statements that he would guarantee a hundred per cent perfect hand or a hundred per cent good hand, uttered during the office visit after repeated solicitations to perform the skin-graft operation, could reasonably be understood as a contractual warranty.11 The plaintiff and his father were present, accepted the statements at face value as an inducement to consent, and the defendant sought the opportunity to experiment on skin grafting.12 These facts support submission to the jury under an external standard of interpretation.13
The defendant's statements could be understood as creating a contractual warranty to produce a perfect hand.14
Whether the trial court's jury instruction on damages, which allowed consideration of pain and suffering from the operation and any worsening of the hand, was correct?15
Damages for breach of a contract to produce a perfect hand are measured by the difference between the value of a perfect or good hand as promised and the value of the hand in its actual post-operative condition, including only those incidental losses the parties knew or ought to have known would probably result.16 Pain and suffering incident to the operation constitutes part of the consideration given by the plaintiff and does not measure the difference in value.17 Any worsening of the hand is subsumed within the value differential, though recovery is available even without worsening if the promised improvement was not achieved.18
No. The instruction permitted the jury to award damages for pain and suffering endured during the operation and for any positive ill effects on the hand as separate elements.19 Under the proper rule the pain was part of the bargained-for exchange and supplies no test of the value difference, while any worsening is already captured by comparing the promised perfect hand to the actual result.20 The verdict was later set aside in part as excessive under the erroneous charge.21
The trial court's jury instruction on damages was not correct.22
Whether the trial court properly denied the defendant's requested jury instructions regarding the issues to be decided and the requirements for liability?23
Requested instructions that misstate the controlling issues are properly denied when inaccurate or misleading. Instructions requiring proof of mutual internal understanding rather than external manifestation of assent are inaccurate. Instructions conditioning liability on the unavailability of corrective surgery are erroneous when the evidence shows the defendant refused further operation.24
Yes. Defendant's request number 2 limited the jury to deciding only whether a special contract existed, ignoring other factual issues raised by the evidence.25 Request number 5 required both parties to have understood the guarantee internally, contrary to the objective standard.26 Request number 7 conditioned recovery on the absence of a corrective operation despite evidence that the defendant had refused to perform one.27 These requests were properly refused as loosely drawn and misleading.28
The trial court properly denied the defendant's requested jury instructions.29