N.C.P.I.—Civil 502.55

The (state number) issue reads:

"Did the plaintiff and the defendant mutually agree to substitute a

new and different contract for (identify contract on which the plaintiff has

sued)?"

(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,4

that the plaintiff and the defendant mutually agreed to substitute a new

and different contract for (identify contract on which the plaintiff has

sued).5 Mutual agreement to substitute a new and different contract for a

prior one must be determined from [written words] [verbal expressions]

[conduct] of the parties which [are] [is] positive, unequivocal and

inconsistent with continuation of the prior contract.6 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 substitution.

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 agreed to substitute a new and

different contract for (identify contract on which the plaintiff has sued),

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.