- 8 - 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,Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011