N.C.P.I.—Civil 502.50

The (state number) issue reads:

"Did the plaintiff and the defendant mutually assent to cancel their

contract?"

(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 cancel their

contract.2 Mutual assent to cancel a contract must be determined from

[written words] [verbal expressions] [conduct] of the parties which [are]

[is] positive, unequivocal and inconsistent with the continuation 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 cancellation. (Where

one party positively and unequivocally [abandons] [repudiates] the

contract and the other party positively and unequivocally [consents to]

[acquiesces in] the [abandonment] [repudiation], the parties have

mutually assented to cancel 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 mutually assented to cancel their

contract, 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.