Olde Raleigh Realty Corporation - Page 9




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          Henderson with himself.  Petitioner cites an 1835 North Carolina            
          opinion containing dicta to the effect that an oral agreement may           
          be proven by “any competent witness, who was present at the time,           
          or who heard the defendant admit the existence of such contract.”           
          Pender v. Forbes, 18 N.C. 250 (1835).  Whether or not this is the           
          law, petitioner provided no witness, much less a competent                  
          witness, to prove such an oral contract.  Mr. Henderson, the                
          president of petitioner, did not testify at trial.  Mr.                     
          Henderson, as an individual, did not testify.  Nor did any of               
          petitioner’s other officers or employees testify as to the                  
          alleged oral agreement and its execution.                                   
               Petitioner’s sole witness was C. Gilbert Smith (Mr. Smith),            
          petitioner’s certified public accountant.  Mr. Smith offered no             
          testimony as to the existence of the purported oral agreement               
          between petitioner and Mr. Henderson.  Mr. Smith did not testify            
          that he was present at the time of the purported oral agreement.            
          Mr. Smith testified only about how petitioner’s books reflected a           
          purported arrangement.  Petitioner provided no objective records            
          to evidence the execution of the oral agreement: no deposit                 
          slips, no canceled checks, no bank statements, and no other                 
          evidence of receipt by petitioner of funds from Mr. Henderson to            
          act in a “trustee” capacity in accordance with the alleged oral             
          agreement.                                                                  
               The record before this Court contains no evidence that,                






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