N.C.P.I.—Civil 502.40

NOTE WELL: Where no genuine dispute exists regarding

a contract’s substance, whether it is an illegal or

unenforceable contract is a question of law for the

court. See Fenner v. Tucker, 213 N.C. 419, 423 (1938)

(absent conflicting evidence, whether contract is illegal

as a gambling contract is a question of law). However,

there may be instances where there is a factual

dispute as to whether the promise or covenant at issue

involves an illegal or unenforceable subject matter. See

Collins v. Davis, 68 N.C. App. 588, 592, 315 S.E.2d 759,

762 (1984) (purpose for which money and work were

contributed is question of fact; unenforceability of

implied contract based upon money paid for illegal

purpose is question of law).

The endnotes provide examples of contracts deemed

illegal or unenforceable in North Carolina. The body of

this instruction provides a model special interrogatory

to be used if a predicate fact is genuinely in dispute

and must be decided by the jury.

The (state number) issue reads:

“Is the [promise] [covenant] which the plaintiff seeks to enforce

against the defendant a (state nature of promise or covenant alleged to

be illegal or unenforceable)?”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,

that the [promise] [covenant] which the plaintiff seeks to enforce against

the defendant is a (state factual basis for contention that the promise or

covenant at issue is illegal or unenforceable).

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 [promise] [covenant] which the plaintiff seeks to enforce against the

defendant is a (state nature of promise or covenant alleged to be illegal

or unenforceable), 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.