35.07 [1998 Revision] Illustrations(Bilateral Contract(Substantial Performance in Issue

Instruction No 1 35.07 [1998 Performance in Issue Revision] IllustrationsCBilateral ContractCSubstantial Plaintiff Carl Carpenter agreed with defendant Henry Householder to furnish and install sixteen storm windows for $100.00 per unit. Plaintiff installed the sixteen windows, but defendant paid plaintiff only half the agreed amount, contending plaintiff had failed to make the windows airtight. Plaintiff sued for the balance. Instruction No. 1 Instruction No. 2 (Same as MAI 2.01) (See MAI 2.03 (1980 New)) As you remember, the court gave you a general instruction before the presentation of any evidence in this case. The court will not repeat that instruction at this time. However, that instruction and the additional instructions, to be given to you now, constitute the law of this case and each such instruction is equally binding upon you. You should consider each instruction in light of and in harmony with the other instructions, and you should apply the instructions as a whole to the evidence. The order in which the instructions are given is no indication of their relative importance. All of the instructions are in writing and will be available to you in the jury room. Instruction No. 3 (See MAI 3.01 (1998 Revision)) In these instructions, you are told that your verdict depends on whether or not you believe certain propositions of fact submitted to you. The burden is upon the party who relies upon any such proposition to cause you to believe that such proposition is more likely to be true than not true. In determining whether or not you believe any proposition, you must consider only the evidence and the reasonable inferences derived from the evidence. If the evidence in the case does not cause you to believe a particular proposition submitted, then you cannot return a verdict requiring belief of that proposition. Instruction No. 4 (See MAI 2.02 (1980 Revision)) In returning your verdict you will form beliefs as to the facts. The court does not mean to assume as true any fact referred to in these instructions but leaves it to you to determine what the facts are. Instruction No. 5 (See MAI 2.04 (1981 Revision)) The verdict form included in these instructions contains directions for completion and will allow you to return the permissible verdict in this case. Nine or more of you must agree in order to return any verdict. A verdict must be signed by each juror who agrees to it. Instruction No. 6 (See MAI 26.07 (1981 Revision)) Your verdict must be for plaintiff if you believe: First, plaintiff and defendant entered into an agreement whereby plaintiff agreed to furnish and install 16 storm windows upon defendant's house and defendant agreed to pay plaintiff $100.00 per window, and Second, plaintiff substantially performed such agreement in a workmanlike manner, and Third, defendant failed to perform his agreement, and Fourth, plaintiff was thereby damaged. Instruction No. 7 (See MAI 33.04 (1995 Revision)) Your verdict must be for defendant unless you believe plaintiff substantially performed such agreement in a workmanlike manner. Instruction No. 8 (See MAI 16.04 (1980 New)) The phrase "substantially performed" as used in these instructions means performance of all important parts of the contract with only slight variations. Instruction No. 9 (See MAI 4.09 (1980 Revision)) If you find in favor of plaintiff then you must award plaintiff $800.00. VERDICT A (See MAI 36.01 (1980 Revision)) Note: Complete this form by writing in the name required by your verdict. On the claim of plaintiff Carpenter against defendant Householder, we, the undersigned jurors, find in favor of: (Plaintiff Carpenter) or (Defendant Householder) Note: Complete the following paragraph only if the above finding is in favor of plaintiff Carpenter. We, the undersigned jurors, assess the damages of plaintiff Carpenter at $ (stating the amount ). Note: All jurors who agree to the above findings must sign below.