M Civ JI 140.01 Contract Action - UCC: Explanation and Burden of Proof

This case involves a claim by the [ seller / buyer ] for breach of a contract for the sale of goods. A contract for the sale of goods is an agreement between a buyer and a seller who by their words and conduct show that they intend to make a contract.

The [ seller / buyer ] has the burden of proving that:

(a) (the contract exists)

(b) (the [ buyer / seller ] breached the contract)

(c) (the [ seller / buyer ] was damaged by the breach of contract).

(The [ buyer / seller ] has the burden of proving the defense of [ describe defense ].)

This case also involves a counterclaim by the [ buyer / seller ] that the [ seller / buyer ] breached this contract. With respect to the counterclaim, the [ buyer / seller ] has the burden of proving that:

(d) (the [ seller / buyer ] breached the contract)

(e) (the [ buyer / seller ] was damaged by the breach of contract).

(The [ seller / buyer ] has the burden of proving the defense of [ describe defense ].)

Note on Use

If any of the matters in this instruction are admitted or otherwise not an issue in the case, this instruction must be modified to exclude such matters.

Comment

As to what constitutes a contract for the sale of goods, see Lorenz Supply Co v American Standard Inc, 419 Mich 610; 358 NW2d 845 (1984).

The burden of proving the existence of a contract is on the party alleging the contract. American Parts Co Inc v American Arbitration Association, 8 Mich App 156; 154 NW2d 5 (1967).

The statute of frauds is an affirmative defense and the burden of proof is on the party opposing enforcement. Fairway Machinery Sales Co v Continental Motors Corp, 40 Mich App 270; 198 NW2d 757 (1972). However, the moving party has the burden of proving part performance under the exception of MCL 440.2201(3)(c). R G Moeller Co v Van Kampen Construction Co, 57 Mich App 308; 225 NW2d 742 (1975).

History

M Civ JI 140.01 was added January 1987.