N.C.P.I.—Civil 502.47

NOTE WELL: Use this instruction only where the

contention of the defendant is that the parties orally

modified a written contract and, as modified, the

defendant did not breach its terms. For oral

modification of oral contracts, written modifications of

oral contracts and written modifications of written

contracts, see N.C.P.I. Civil-502.48 (Common Law

Contract-Issue of Breach-Defense of Modification of

Contract).

The (state number) issue reads:

"Did the plaintiff and the defendant orally modify that term of their

written contract which the plaintiff contends was breached?"

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

number)1 issue "Yes" in favor of the plaintiff.)

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

that the defendant must prove, by clear and convincing2 evidence that

the plaintiff and the defendant mutually assented to an oral modification

of their written contract.3 Mutual assent to modify a written contract

must be determined from the [verbal expressions] [conduct] of the

parties which [are] [is] positive, unequivocal and inconsistent with the

original term(s) of the written contract.4 Each party's [verbal

expressions] [conduct] [are] [is] to be given such meaning as a

reasonable person would give under the same or similar circumstances.

In determining what meaning a reasonable person would give to the

parties' [verbal expressions] [conduct], you should consider the evidence

as to all the circumstances existing at the time of the alleged oral

modification. (Where one party positively and unequivocally [abandons]

[repudiates] [changes] a term in a contract and the other party positively

and unequivocally [consents to] [acquiesces in] such [abandonment]

[repudiation] [change], the parties have mutually assented to a

modification of the contract.)5

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

the burden of proof, if you find by clear and convincing evidence that the

plaintiff and the defendant orally modified that term of their written

contract which the plaintiff contends was breached, 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.