N.C.P.I.—Civil 502.48

NOTE WELL: Do not use this instruction where the

contention of the defendant is that the parties orally

modified a written contract. In such case, the burden

of proof is clear and convincing evidence and N.C.P.I.

Civil- 502.47 (Common Law Contract- Issue of Breach-

Defense of Oral Modification of Written Contract) must

be used. Give the instant instruction where the

contention of the defendant is that the parties orally

modified an oral contract, modified an oral contract in

writing or modified a written contract in writing.

The (state number) issue reads:

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

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 the greater weight of the evidence,

that the plaintiff and the defendant mutually assented to a modification

of their contract.2 Mutual assent to modify a contract must be

determined from the [written words] [verbal expressions] [conduct] of the

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

original term(s) of the contract.3 Each party's [written words] [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' [written words] [verbal expressions] [conduct], you should

consider the evidence as to all the circumstances existing at the time of

the alleged 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.)4

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 plaintiff and the defendant modified that term of their 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.