N.C.P.I.—Civil 741.31

The (state number) issue reads:

"Did the defendant by [course of dealing] [usage of trade] impliedly

warrant to the plaintiff that the (name good) was (state nature of

contended warranty)?"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, that

when the defendant sold the (name good) to the plaintiff, the defendant

by [course of dealing] [usage of trade] impliedly warranted to the plaintiff

that the (name good) was (state nature of contended warranty).

A warranty that (state nature of contended warranty) may become

part of the parties' contract of sale through a [course of dealing] [usage

of trade].

[A course of dealing is a sequence of previous conduct between the

parties to a particular transaction which is fairly to be regarded as

establishing a common basis of understanding between them for

interpreting their expression and other conduct. Whether such course of

dealing existed between the plaintiff and the defendant and, if so,

whether it fairly created an understanding that the defendant warranted

that (state nature of contended warranty) is for you to determine from

the evidence.]2

[A usage of trade is any practice or method of dealing having such

regularity of observation in a place, vocation or trade as to justify an

expectation that it will be observed with respect to the transaction in

question. Whether such usage of trade existed between the plaintiff and

the defendant and, if so, whether it justified an expectation that the

defendant warranted that (state nature of contended warranty) is for you

to determine from the evidence.]3

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

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

the defendant by [course of dealing] [usage of trade] impliedly warranted

to the plaintiff that the (name good) was (state nature of contended

warranty), 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.