N.C.P.I.—Civil 813.29

NOTE WELL: Use this instruction only with claims for

relief arising before October 1, 1996. Session Laws

1995 (Regular Session 1996), c. 550, s. 2 repealed N.C.

Gen. Stat. § 75-5 effective October 1, 1996.

The (state number) issue reads:

"Did the defendant,2 while [buying] [selling] any goods in this

State, [make] [enter into] [execute] [carry out] a [contract] [obligation]

[agreement] with another [person] [corporation] [partnership] [(name

other business association)] [not to sell or dispose of any goods below a

common standard figure, or fixed value] [to establish or settle the price

of any goods between themselves (and others) at a fixed or graduated

figure] to preclude free and unrestricted competition in the sale of such

goods?"

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, four

things:

First, that the defendant [bought] [sold] goods in this State.

"Goods" include any goods, wares, merchandise, articles of trade, use or

consumption,3 or other things of value [bought] [sold] in this State.4

Second, that the defendant [made] [entered into] [executed]

[carried out] a [contract] [obligation] [agreement] with at least one other

[person] [corporation] [partnership] [(name other business association)].5

[For the definition of a contract as needed, see N.C.P.I.-Civil 501.10

et seq.]

[An obligation is an understanding between the defendant and at

least one other [person] [corporation] [partnership] [(name other

business association)] which binds both to engage in a specific type of

conduct.]

[An agreement may be express or implied. An express agreement

or understanding is one explicitly declared by the parties, either orally or

in writing. An implied agreement or understanding is one not explicitly

declared by the parties, but is implied by facts and circumstances

showing a mutual intent to agree or reach an understanding.]

Third, that, under the terms of any such [contract] [obligation]

[agreement], the defendant and (identify other party to the alleged

agreement) [agreed not to sell or dispose of any goods below a common

standard figure, or fixed value] [established or settled the price of any

goods between themselves (and others) at a fixed or graduated figure].6

(In other words, that defendant and (identify other party) agreed to

fix a minimum value or price for the goods, and further agreed not to sell

the goods below the minimum figure.)

Fourth, that such [contract] [obligation] [agreement] directly or

indirectly precluded free and unrestricted competition in the sale of such

goods.

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, while

[buying] [selling] (describe goods) in this State, defendant [made]

[entered into] [executed] [carried out] a [contract] [obligation]

[agreement] with another [person] [corporation] [partnership] [(name

other business association)] [not to sell or dispose of (describe goods)

below a common standard figure, or fixed value] [to establish or settle

the price of (describe goods) between themselves (and others) at a fixed

or graduated figure] to preclude free and unrestricted competition in the

sale of (describe goods), then it would be your duty to answer this issue

"Yes" in favor of the plaintiff.

If, on the other hand, you do not so find, then it would be your

duty to answer this issue "No" in favor of the defendant.