N.C.P.I.—Civil 502.35

"Was the defendant's failure to perform personal services under the

contract excused by [death] [disability] [illness]?"1

(You will answer this issue only if you have answered the (state

number)2 issue "Yes" in favor of the plaintiff.)

On this issue the burden of proof is on the defendant.3 This means

that the defendant must prove, by the greater weight of the evidence,

three things:

First, that the services to be rendered by the defendant were

strictly personal in nature. Services are strictly personal when they

cannot be acceptably performed by someone else because of the

defendant's particular [talent] [skill] [taste] [fitness] [personality]

[experience] [contacts] [industry] [ability] [name recognition] [physical

appearance] [state other singular attribute].4

Second, that the defendant did not perform the services of a strictly

personal nature under the contract because of his [death] [disability]

[illness].

And Third, that the contract between the plaintiff and the

defendant did not allocate the risk that the defendant might [die]

[become too disabled to perform] [become too ill to perform]. (If the

parties provided that the obligations of the defendant would survive his

[death] [disability] [illness], the fact that the defendant contracted to

render services of a strictly personal nature would not excuse [him] [his

estate] from performing.)5

Finally, as to the (state number) issue on which the defendant has

the burden of proof, if you find by the greater weight of the evidence that

the defendant's failure to perform personal services under the contract

was excused by [death] [disability] [illness], then it would be your duty

to answer this issue "Yes" in favor of the defendant.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the plaintiff.