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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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