WPI 300.02 Burden of Proof on the Issues—Breach of Contract—No Affirmative Defense

Use this instruction for breach of contract actions not involving any affirmative defenses. The instruction will need to be revised if the contract claim is being brought by a party other than the plaintiff.

This instruction is patterned after WPI 21.02 (Burden of Proof on the Issues—No Affirmative Defense), adapted for use in a standard breach of contract case. Depending upon the issues remaining in the case, select the appropriate paragraphs (1) through (6).

Use this instruction in combination with an appropriate instruction from WPI Chapter 303 (Contracts—Remedies).

Regarding bracketed paragraphs (4) and (5), see the Comment's discussion about conditions precedent and material breaches of contract. Consider whether it would be appropriate to use WPI 302.02 (Conditions Precedent or Conditions Concurrent) in combination with this instruction.

Regarding bracketed paragraph (6), see the Comment to WPI 303.01 (Measure of Expectation Damages—Breach of Contract—No Counterclaim), for a discussion of actual damages versus nominal damages.

Use this instruction with WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence) when the case involves only issues that require proof by a preponderance of evidence. Use this instruction with WPI 160.03 (Fraud—Burden of Proof—Combined with Preponderance of Evidence) when the case also involves issues, such as fraud, that require proof by clear, cogent, and convincing evidence.

Use this instruction with WPI 300.01 (Issues—Breach of Contract—Damages).

Use WPI 300.03 (Burden of Proof on the Issues—Breach of Contract—With Affirmative Defenses), if there are affirmative defenses to be considered by the jury.

If there is a counterclaim for damages by defendant, set forth the alternative findings as in WPI 21.04 (Burden of Proof on the Issues—Counterclaim), adapted for a contract action.

In a case in which some of the elements of the claim have been admitted by the party defending the claim, it may be appropriate to insert a reference to such admissions. Cf. WPI 6.10.02 (Use of Admissions or Binding Stipulations under CR 36(b)), and WPI Chapter 23 (Admitted Liability).

For the essential elements of a breach of contract claim, see the Comment to WPI 300.01 (Issues—Breach of Contract—Damages).

Burden of proof. The appropriate standard of proof for a breach, even when the alleged breach consists of misrepresentation or concealment of a material fact (in an insurance claim), is a preponderance of evidence rather than clear, cogent, and convincing evidence. Allstate Ins. Co. v. Huston, 123 Wn.App. 530, 542, 94 P.3d 358 (2004); St. Paul Mercury Ins. Co. v. Salovich, 41 Wn.App. 652, 657, 705 P.2d 812 (1985).

Conditions precedent. With regard to paragraphs (4) and (5), the “party seeking enforcement of the contract has the burden of proving performance of an express condition precedent.” Walter Implement, Inc. v. Focht, 107 Wn.2d 553, 557, 730 P.2d 1340 (1987) (citing Ross v. Harding, 64 Wn.2d 231, 391 P.2d 526 (1964)).

“If a contract requires performance by both parties, the party claiming nonperformance of the other must establish as a matter of fact the party's own performance.” Willener v. Sweeting, 107 Wn.2d 388, 394, 730 P.2d 45 (1986), quoted in Wallace Real Est. Inv., Inc. v. Groves, 124 Wn.2d 881, 897, 881 P.2d 1010 (1994).

It has also been said that “one who seeks to enforce the terms of a contract against another or to recover damages for the breach of a contract by another must show that there has been no breach on his own part.” Downs v. Smith, 169 Wash. 203, 13 P.2d 440 (1932). This applies unless the defendant's performance is a condition precedent to plaintiff's performance (i.e., the duties are not concurrent), or unless plaintiff's performance is otherwise excused or discharged. Willener, 107 Wn.2d 388. In Willener, duties were concurrent and neither party performed, so neither could claim damages for breach. See the Comment to WPI 302.02 (Conditions Precedent or Conditions Concurrent).

Materiality of breach. Although the quotation above from Willener and Wallace suggests that even a trivial breach by the plaintiff of a condition precedent will preclude the plaintiff from recovering for a defendant's breach, Washington cases do not necessarily so hold. For example, in Jacks v. Blazer, 39 Wn.2d 277, 285, 235 P.2d 187 (1951), the court held that a “breach or non-performance of a promise by one party to a bilateral contract, so material as to justify a refusal of the other party to perform a contractual duty, discharges that duty.” See also Rosen v. Ascentry Techs., Inc., 143 Wn.App. 364, 369, 177 P.3d 765 (2008) (quoting Jacks, 39 Wn.2d at 286); Dwinell's Cent. Neon v. Cosmopolitan Chinook Hotel, 21 Wn.App. 929, 936–37, 587 P.2d 191 (1978) (quoting Jacks, 39 Wn.2d at 285).

Neither Willener nor Wallace necessarily alters this principle. See Willener, 107 Wn.2d at 394 (the court's analysis incorporated materiality of the breach by addressing whether the plaintiffs sufficiently performed under the agreement to claim the defendants' nonperformance); Wallace, 124 Wn.2d at 897–99 (the court did not need to address materiality, because the breach related to the plaintiff's primary duty under the contract—to tender payment for the goods being purchased). Due to the unsettled nature of the law, the word “material” is bracketed in the instruction.

Affirmative defense. Under some contracts, the plaintiff's performance of a contractual obligation is not made a condition precedent to the defendant's performance. For these contracts, the burden of proving whether the plaintiff breached the contract rests with the defendant, rather than the plaintiff, as an affirmative defense. See Wlasiuk v. Whirlpool Corp., 81 Wn.App. 163, 178–79, 914 P.2d 102 (1996); DeWolf, Allen, & Caruso, 25 Washington Practice, Contract Law and Practice § 10:3 (3d ed.).

With regard to paragraph (6), see the portion of the Comment to WPI 303.01 (Measure of Expectation Damages—Breach of Contract—No Counterclaim) related to damages as a substantive element of plaintiff's case.