N.C.P.I.—Civil 635.35

"Did the defendant agree to pay the statement of account

submitted by the plaintiff?"

An account stated is an [express] [implied] agreement between the

parties to the account that it is correct, owing and will be paid.1

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

that the plaintiff must prove, by the greater weight of the evidence, three

things:

First, that the plaintiff calculated the account balance.

Second, that the plaintiff submitted a statement of that account

balance to the defendant for payment.

Third, that the defendant (either)

[expressly admitted the correctness of the statement of account

balance] (or)

[acknowledged receipt of the statement of account balance and

[expressly] [impliedly] agreed to pay it].

(A person's agreement to pay a statement of account balance may be

implied from his conduct. If a reasonable time passes during which the

recipient of the statement of account balance, without excuse,2 fails to

protest or object to the statement of account, you may find, but are not

compelled to do so, that the recipient has by his conduct agreed to pay

the statement of account as submitted. What is an acceptable excuse

for not protesting or objecting, or what is a reasonable time in which to

make a protest or objection is for you to decide from all the evidence. In

making this determination, you may consider, among other things, the

nature of the transaction, the relationship of the parties, their distance

from one another, the means of communication between them, their

business capacity, their intelligence or lack of intelligence and the usual

course of their business.)3

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find by the greater weight of the evidence that the

defendant agreed to pay the statement of account submitted by the

plaintiff, then it would be your duty to answer this issue "Yes" in favor of

the plaintiff.

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 defendant.