Volume 42 — North Carolina Court of Appeals Reports

1. Trespass 7 — action for forcible trespass — question of material fact The trial court erred in entering summary judgment for defendant landlord in plaintiff's action for forcible trespass where the evidence presented a question of fact as to whether the landlord pulled upon the screen door of plaintiff's apartment with such force so as to tear two hooks securing the door out of the door frame and then came through the screen door upon plaintiff's back porch and beat and banged upon the door to plaintiff's kitchen. 2. Damages 12.1; Trespass 10 — punitive damages for forcible trespass — sufficiency of complaint Plaintiff's allegations that defendant's conduct constituted "a willful, wanton, malicious, reckless, wrongful, rude and forcible trespass to plaintiff's rightful possession of the apartment," if supported by evidence, would permit the jury to consider an award of punitive damages.

1. Attorneys at Law 7.5 — action against insurer — attorney fees as part of costs — motion — findings A plaintiff seeking an award of attorney fees under G.S. <cross_reference>6-21.1</cross_reference> does not have to plead for such an award as a separate claim in<page_number>Page 51</page_number> the complaint but may properly move for an award of attorney fees after a verdict has been returned in its favor; nor is it required that the trial judge make separate findings and conclusions in accordance with G.S. <cross_reference>1A-1</cross_reference>, Rule 52 (a) to support the award of attorney fees. 2. Attorneys at Law 7.5 — finding of unwarranted refusal by insurer to pay claim — no abuse of discretion In an action upon an automobile collision insurance policy, the trial court did not abuse its discretion in finding that defendant insurer had unwarrantedly refused to pay plaintiff's claim and in awarding attorney fees to plaintiff under G.S. <cross_reference>6-21.1</cross_reference> although defendant insurer offered evidence, had it been believed, that would have been a defense to plaintiff's claim. 3. Attorneys at Law 7.5 — attorney fee of $1,200 — no abuse of discretion The trial court's award to plaintiff of an attorney fee of $1,200 under G.S. <cross_reference>6-21.1</cross_reference> was not so low so as to constitute an abuse of discretion where the court found that plaintiff's attorney had reasonably expended 65 hours on plaintiff's case.

Venue 4 — action against city — venue in county where city located Proper venue in an action against a city to recover the price of equipment installed in its municipal building lies in the county in which the city is located, since the contract was performed and the failure to pay occurred in that county, G.S. <cross_reference>1-77</cross_reference>, and the trial court erred in failing to grant defendant city's motion for a change of venue to such county.

1. Evidence 34.2 — purchase of trucks — inflated price to cover previous bill — admission — no compromise offer In an action to recover $4000 for repairs made to a truck owned by one of defendant's drivers where defendant claimed that it was not responsible for the bill, the trial court properly allowed into evidence testimony that the president of defendant, in negotiating for the purchase of two trucks from plaintiff's assignor, suggested that, when financing for the purchase of the trucks was being arranged, the assignor raise the price of each of the trucks by $2000 and apply the extra $4000 from the sale against the outstanding repair bill, since such testimony established an admission by defendant's president that, at the time he made the statements, he considered himself liable for the debt involved in this case; furthermore, the evidence was not excludable as an offer to compromise since the amount of the repair bill was $4025.71, and it would be unrealistic to assume that an offer to pay $4000 was a compromise offer. 2. Contracts 27.1 — existence of contract — sufficiency of evidence In an action to recover $4000 for repairs made to a truck owned by one of defendant's drivers, evidence was sufficient to show a contract between defendant and plaintiff's assignor where the evidence tended to show that defendant's president telephoned plaintiff's assignor and told him that the truck was being towed in, that his business was flourishing and he needed the truck repaired as quickly as he could get it back on the road; after the repairs had been completed, defendant's president told the manager of plaintiff's assignor that he would pay for the repairs and even instructed him as to where to send the bill; and defendant's president discussed paying for the repairs with the business manager of plaintiff's assignor fifteen to twenty times and stated that he was going to pay the bill as soon as he could. 3. Frauds, Statute of 5 — repairs to truck — no promise to pay for debt of another In an action to recover $4000 for repairs made to a truck, there was no merit to defendant's contention that its promise to pay for the repairs was barred by G.S. <cross_reference>22-1</cross_reference> as being an unwritten promise to pay the debt of another, since the evidence disclosed that the bill defendant promised to pay belonged to defendant only and not to defendant's driver, the owner of the truck.<page_number>Page 117</page_number> 4. Uniform Commercial Code 8 — repair to truck — parts required — no sale of goods — statute of frauds inapplicable In an action to recover $4000 for repairs made to a truck, there was no merit to defendant's contention that any contract for parts used in the repair of the truck was rendered unenforceable by the statute of frauds provision of G.S. <cross_reference>25-2-201</cross_reference> pertaining to the sale of goods, since the contract in the present case was for services, and the fact that various parts were also required to repair and service the truck properly was merely incidental to the repair contract. 5. Evidence 33.1, 46 — written notations on invoice — handwriting authenticated — no hearsay In an action to recover for the cost of repairs to a truck, the trial court did not err in allowing plaintiff to introduce into evidence a duplicate invoice from its assignor which had some handwritten notations on it, since the writing was sufficiently authenticated by the owner of the truck which was repaired, and since the handwriting on the invoice did not render the exhibit inadmissible on the basis of hearsay, as the handwriting was not offered to prove the truth of the matter asserted therein, but was offered only for the purpose of showing that the statements had been made. 6. Trial 36 — instruction to examine exhibit carefully — no comment on evidence The trial court's instruction to the jury to examine plaintiff's exhibit "very carefully" did not constitute an improper comment as to the probative force of the evidence. 7. Contracts 28 — quantum meruit — no instruction given — amount of damages — instruction proper Where defendant's president telephoned plaintiff's assignor and specifically requested that a truck be repaired, asked that the bill be sent to him, and stated that he would pay the bill as soon as he could, the trial court did not err by instructing the jury only as to express contracts and not instructing or submitting an issue as to quantum meruit; furthermore, the court did not err in instructing the jury that they should award plaintiff damages of $4025.71 if they believed the evidence with respect to costs of labor and materials, since the evidence tended to show that defendant was billed for that amount, discussed the bill numerous times with plaintiff's assignor, and never questioned the amount of the bill.

1. Rules of Civil Procedure 37 — failure to comply with discovery order — justification — burden of proof on noncomplying party If a party who fails to comply with a discovery order of the court wishes to avoid court imposed sanctions for his failure, the burden is upon him to show that there is justification for his noncompliance. Plaintiffs in this action could not excuse their failure by claiming that they were not represented by an attorney, since that situation arose by their own choice, or by claiming that the long history of the case with its many extensions of time showed that the parties were willing to accommodate each other with "extensions ad infinitum," since the situation was no longer merely between the parties after the court intervened and ordered plaintiffs to answer interrogatories. 2. Rules of Civil Procedure 37 — failure to answer interrogatories — dismissal proper There was no merit to plaintiffs' contention that the court was not entitled to impose the sanction of a dismissal of their action with prejudice upon finding that plaintiffs' failure to comply with the court's order to answer interrogatories was without justification. G.S. <cross_reference>1A-1</cross_reference>, Rule 37 (b)(2). 3. Rules of Civil Procedure 25 — parties not properly substituted The substituted plaintiffs were never properly made parties to this lawsuit since no substitution motion was made; the "substitution" was made just under three years after the death of one of the original plaintiffs; and no supplemental complaint was filed. Therefore, the substituted plaintiffs had no claim which could have been abated, and the court does not consider their argument that their claim was abated prematurely. G.S. <cross_reference>1A-1</cross_reference>, Rule 25.<page_number>Page 135</page_number>

1. Weapons and Firearms 3 — discharging firearm into occupied building — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for discharging a firearm into an occupied building where it tended to show that a glass door forming the entrance to a police station was shattered by a shotgun blast; at the time of the shooting, a<page_number>Page 149</page_number> magistrate was standing directly in front of the door a little to the left and two other persons were present in the station; two spent shotgun shells found in the street in front of the station were fired from a shotgun taken from defendant when he was arrested a short time later; and defendant told officers he intended to kill a cop before the sun came up. G.S. <cross_reference>14-34.1</cross_reference>. 2. Property 4.2 — damaging real property — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for willful and wanton damage to real property where it tended to show that defendant intentionally fired a shotgun through the glass front door of a police station. G.S. <cross_reference>14-127</cross_reference>. 3. Assault and Battery 14 — communicating threats — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for communicating threats in violation of G.S. <cross_reference>14-277.1</cross_reference> (a) where it tended to show that defendant made numerous threatening statements to officers who arrested him and to officers present in the police station after his arrest, that such threats would cause a reasonable person to believe they would be carried out, and that the police officers believed that the threats would be carried out. 4. Arrest and Bail 6.2 — resisting arrest — sufficiency of evidence The State's evidence was sufficient for the jury in a prosecution for resisting arrest where it tended to show that an officer observed defendant fire a shotgun from a moving vehicle and informed him that he was under arrest; when the officer attempted to place handcuffs on defendant, he lifted the officer up off the ground; and five or six officers finally had to pull defendant's feet out from under him and place him on the ground on his chest in order to handcuff him. 5. Jury 6.3 — improper question by prosecutor — failure to strike entire panel The trial court did not err in failing to strike the entire jury panel after the prosecutor improperly asked four jurors who had read about the case "whether they had an opinion that the defendant was guilty" where the court sustained defendant's objection to the question and none of the jurors were permitted to respond to it. G.S. <cross_reference>15A-1212</cross_reference> (6). 6. Searches and Seizures 11 — probable cause to search vehicle — effect of removal of vehicle to police station Where an officer observed defendant fire a shotgun from the window of his moving vehicle, the officer had probable cause to search defendant's vehicle for shotgun shells at the time he arrested defendant, and the fact that the shells were seized some five to seven minutes later after the vehicle had been removed from the middle of the street to a parking lot at the police station did not make the search and seizure unreasonable. 7. Criminal Law 57 — expert in ballistics — qualification The trial court's determination that a witness was an expert in ballistics was supported by evidence tending to show that he was a special agent in the firearms and toolmark section of the SBI; he had been employed for 25 years in the New York City Police Department in ballistics; and he had tested thousands of rifles, semi-automatic pistols and shotguns.<page_number>Page 150</page_number>

Declaratory Judgment Act 3 — agreement for devise of property — no breach of agreement — no justiciable controversy There was no justiciable controversy between the parties so as to give the court jurisdiction under the Declaratory Judgment Act where plaintiffs were third party donee beneficiaries of an executory contract between their father and defendant to devise real property in a particular manner; plaintiffs in essence sought a determination of their rights upon a breach of the contract by defendant; but no breach of contract could occur until defendant either voluntarily disabled herself from being able to comply with its terms or died without making a will disposing of the property in accordance with the contract.

1. Evidence 29 — authentication of writing A writing may be authenticated by the production of sufficient evidence from which the jury could find that the writing was either written or authorized by the person who the writing indicates was responsible for its contents. 2. Evidence 29.1 — authentication of mailgram A mailgram giving notice of termination of a lease was sufficiently authenticated for admission in evidence where a person who identified himself as the secretary-treasurer of defendant told an officer and an employee of plaintiff over the telephone that he would send plaintiff a written termination of the lease; both plaintiff's officer and the employee recognized the voice on the telephone as that of defendant's secretary-treasurer; and the mailgram was thereafter received by plaintiff and was sent in the name of defendant and defendant's secretary-treasurer. 3. Interest 2 — interest on liquidated damages for termination of lease Plaintiff was entitled to interest on liquidated damages for the termination of a lease from the date that the lease was terminated.

1. Divorce and Alimony 25.9 — child custody — changed circumstances — modification not required Where the changes in circumstances are such as to warrant but not compel a change in a child custody award, the decision of the trial judge to modify or not to modify that award will not be disturbed on appeal. 2. Divorce and Alimony 25.12 — child custody — motion for modification — visitation privileges — cost of transporting child The issue of visitation was before the court upon plaintiff's motion for modification of a child custody award on the basis of changed circumstances, and the trial court did not abuse its discretion in requiring the parties to split the expense of the child's transportation for visitation purposes.

Negligence 57.4 — fall on motel steps — sufficiency of evidence of negligence In an action to recover for injuries sustained by plaintiff when she fell down the steps of defendant's motel, evidence was sufficient to be submitted to the jury where it tended to show that plaintiff's shoe heel unexpectedly became wedged in a, crevice near the front edge<page_number>Page 207</page_number> of one of the steps; plaintiff was proceeding in a careful and prudent manner and the crevice was almost imperceptible to one proceeding down the steps; the wearing away of the concrete of the step and the resulting gap between the metal strip and the rest of the step did not occur suddenly; and defendant knew of the condition, should have known it was dangerous, and yet allowed it to continue to exist without doing anything to warn its guests of the danger.

1. Criminal Law 82.2 — privileged communications to psychologist — alleged homicide — hearing on whether to compel disclosure — jurisdiction of superior court The superior court was not without jurisdiction of a special proceeding instituted by the district attorney for the court to conduct an in camera examination to determine whether professional employees of a mental health center obtained privileged information about an alleged homicide and whether disclosure of such information to law officers was necessary to a proper administration of justice because the proceeding was not commenced pursuant to statutory requirements for initiating a civil action as provided by G.S. <cross_reference>1-394</cross_reference>; rather, the superior court obtained jurisdiction where the district attorney, acting pursuant to G.S. <cross_reference>8-53.3</cross_reference>, filed a motion for an in camera hearing, the court promptly issued an order requiring the director and other professional employees of the mental health center to appear in court, and this notice was personally served by the sheriff. 2. Criminal Law 82.2 — privileged communications — physician or psychologist — compelling disclosure prior to filing of charges When construed together, G.S. <cross_reference>8-53</cross_reference> and G.S. <cross_reference>8-53.3</cross_reference> permit the trial court to compel disclosure of privileged information obtained by a physician or a psychologist prior to trial and prior to the filing of criminal charges when such action is necessary to the exercise of its implied or inherent powers to provide for the proper administration of justice.<page_number>Page 293</page_number>

1. Constitutional Law 31 — extradition proceeding — free transcript properly denied The trial court did not err in denying defendant's motion for an order directing that he be furnished a free transcript of his N.Y. extradition hearing, since an extradition proceeding is intended to be a summary and mandatory executive proceeding so that a transcript would be of minimal value to defendant; defendant had an alternative device which would serve the same function as the transcript; and defendant waited until approximately one week before trial to enter his motion requesting the transcript. 2. Criminal Law 114.1 — jury instructions — summation of evidence — more time given to State's evidence The trial court clearly and accurately gave a summation of the most important testimony offered by defendant and the State, and the fact that the court consumed more time in stating the evidence for the State was of no consequence, as the State presented considerably more evidence than did defendant. 3. Assault and Battery 15.5 — self-defense — jury instructions There was no merit to defendant's contention that the trial court should have included a distinct mandate on self-defense in its charge as to each lesser included offense.

1. Arbitration and Award 1.1 — contract provision for arbitration — invalidity in 1972 A provision for arbitration in a 1972 construction contract was not binding since a controversy had to exist between the parties in order for them to make a binding contract for arbitration in 1972.<page_number>Page 352</page_number> 2. Arbitration and Award 1.1 — arbitration agreement — controversies in existence Correspondence between the parties in 1975 created a contract between them for arbitration; however, under G.S. 1-567.2 the agreement to arbitrate bound them to arbitrate only controversies existing at the time of the agreement. 3. Arbitration and Award 1 — motion to compel arbitration — controversies not existing at time of agreement The trial court properly denied a motion to compel arbitration pursuant to an arbitration agreement where the movant made a demand for arbitration of controversies which were not in existence at the time the parties agreed to arbitrate. 4. Arbitration and Award 1 — inapplicability of Federal Arbitration Act In order for the Federal Arbitration Act, <cross_reference>9 U.S.C. § 2</cross_reference>, to apply, the transaction which is the subject of a contract must be a transaction in interstate commerce, and the Act does not apply because some of the materials used to perform a contract were shipped in interstate commerce. Therefore, the Federal Arbitration Act did not apply to the construction of the Durham County General Hospital.

1. Divorce and Alimony 18.9 — alimony pendente lite — stipulation of right to receive The facts necessary for an award of alimony pendente lite were established by stipulations of the parties, and the only question before the trial court was the amount of such alimony. 2. Divorce and Alimony 18.10 — alimony pendente lite — findings — evidence Findings of fact are not required to support the trial court's determination of the amount of alimony pendente lite, but the court must consider the income, assets and respective needs of the parties. 3. Divorce and Alimony 18.13 — amount of alimony pendente lite Plaintiff failed to show any abuse of discretion by the trial court in awarding defendant alimony pendente lite of $750 per month. 4. Divorce and Alimony 18.8 — alimony pendente lite — inconsistencies between testimony and affidavit — admissibility of affidavit The presence of inconsistencies between defendant's testimony and her financial affidavit went only to the credibility of certain items in the<page_number>Page 366</page_number> affidavit and did not render the entire affidavit incompetent on the question of alimony pendente lite. 5. Divorce and Alimony 18.8 — alimony pendente lite — savings for vehicle replacement In a hearing on a motion for alimony pendente lite, the trial court did not err in refusing to strike defendant's testimony that she needed to save for a replacement vehicle where such expense was included in defendant's affidavit of financial standing which had been stipulated into evidence.

1. Schools 13.2 — dismissal of teacher — no denial of due process A school teacher who was dismissed for inadequate performance, insubordination, neglect of duty, and failure to comply with requirements of the board of education was not denied due process where (1) the board of education scrupulously followed the elaborate dismissal procedures mandated by G.S. 115-142; (2) the board admitted and gave probative effect to evidence "of a kind commonly relied on by reasonably prudent men in the conduct of serious affairs"; (3) the board properly heard hearsay evidence in order to complete its investigation; (4) the board heard but did not base its decision on evidence of events occurring more than three years before the<page_number>Page 405</page_number> superintendent's letter recommending the teacher's dismissal, and (5) a board member's knowledge of the situation involving the teacher prior to the hearing did not indicate a lack of impartiality on the part of the board member. 2. Schools 13.2 — teacher's dismiss corporal punishment — insubordination — substantial evidence The trial court properly concluded the board of education's finding of insubordination by a teacher was based on substantial evidence where the evidence, including testimony by the teacher herself, the principal, classroom aides and a student's mother, tended to show that the teacher repeatedly used corporal punishment on her handicapped students in violation of her principal's orders, and a finding that the evidence of any one of the grounds listed under G.S. 115-142 (e)(1) was substantial justified dismissal where the teacher was notified that dismissal was based on that ground.

1. Negligence 53, 53.4 — duty of store proprietor to invitee — res ipsa inapplicable A store proprietor owes to his customers the duty to exercise ordinary care to maintain in a reasonably safe condition those portions of his premises which he may expect they will use during business hours and to give warning of hidden perils or unsafe conditions of which he knows or of which in the exercise of reasonable inspection and supervision he should have knowledge. However, no inference of negligence on the part of the store proprietor arises from the mere fact of the customer's fall on the floor of his store during business hours, the doctrine of res ipsa loquitur not being applicable.<page_number>Page 443</page_number> 2. Negligence 57.7 — fall on water on store floor — insufficient evidence of negligence Plaintiff's evidence was insufficient to be submitted to the jury on the issue of defendant store proprietor's negligence where it tended to show only that plaintiff fell because of water on the store floor near a vegetable bin but there was no evidence from which the jury could find either what was the source of the water in which plaintiff fell or how long the water had been there.

1. Evidence 11 — conversations with person who subsequently died — admissibility In an action to recover for labor and materials for work done on property owned by the individual defendant, testimony concerning conversations with an agent of defendants who died before trial was not admitted in violation of G.S. <cross_reference>8-51</cross_reference>, since the testimony was not against the representative of the deceased person, and since G.S. <cross_reference>8-51</cross_reference> does not render an interested witness incompetent to testify to a transaction between himself and a deceased agent of his opponent. 2. Principal and Agent 4.2 — conversations with agent — proof of agency The trial court did not err in admitting testimony of witnesses about conversations with an alleged agent of defendants where such agency was admitted by the individual defendant, and the agent's apparent authority was indicated by the testimony of several witnesses.<page_number>Page 473</page_number> 3. Contracts 26.1 — evidence outside contract — modifications — admissibility There was no merit to defendants' contention that the trial court erred in allowing plaintiff to present evidence aliunde the written contract, since the challenged testimony dealt with alleged modifications or additions made subsequent to the execution of the written contract. 4. Appeal and Error 53 — error relating to one issue — cure by verdict Where the rights of the parties are determined by the jury's answer to one of the issues, error relating to another issue cannot be prejudicial.

Rules of Civil Procedure 38, 39 — jury trial demanded — failure to appear not withdrawal of demand Taken together, G.S. <cross_reference>1A-1</cross_reference>, Rules 38 (d) and 39 (a), provide that once any party to an action makes a timely demand for a jury trial, the trial of all issues so demanded shall be by jury unless all parties who have pleaded or otherwise appeared in the action, or their attorneys of record, affirmatively consent by oral or written stipulation to trial by the court without a jury or the court finds that no jury trial right<page_number>Page 482</page_number> exists as to some or all of the issues, and these rules do not provide that failure to appear at the trial constitutes consent to a withdrawal of a valid jury trial demand.

1. Master and servant 11.1 — covenant not to compete — employer's signature not required A covenant not to compete in a contract signed by defendant was valid since G.S. <cross_reference>75-4</cross_reference> establishes that contracts or agreements limiting the rights of persons to do business in this state may be enforceable if put in writing "duly signed by the party who agrees not to enter into any such business within such territory," and it is not necessary that the persons seeking enforcement of the terms required to be in writing also sign the writing. 2. Master and servant 11.1 — covenant not to compete — territorial restriction unreasonable An agreement by defendant employee not to compete with plaintiff employer for a one year period after termination of employment within a twenty-five mile radius of any city where there was a Manpower office was reasonable as to the time limitation but was not reasonable with respect to the territorial restriction, since defendant's employer, Manpower of Guilford County, Inc., had offices only in Greensboro, High Point, and Winston-Salem, and therefore had no legitimate interest in preventing defendant from competing with other Manpower franchises in other cities or states.

Appeal and Error 6.2 — interlocutory order — appeal premature The trial court's order sustaining objections to, and granting a motion to strike, certain interrogatories, denying defendants' motion to compel answers to those interrogatories, and denying defendants' motion to permit them to respond to plaintiff's request for admissions was interlocutory, and defendants' appeal therefrom was fragmentary and premature.

Frauds, Statute of 7 — contract to convey real property — receipt — insufficiency of writing In an action to establish a contract to convey real property, a receipt by which defendant acknowledged receipt of one thousand dollars from plaintiff's intestate was insufficient to show compliance with the statute of frauds, since the notation "For farm" on the receipt did not, either expressly or by necessary implication, contain the essential features of an agreement to sell land, nor was the "farm" referred to in the receipt identified therein and no reference was made in the receipt to any extrinsic source by which the particular "farm" referred to could be made certain.

1. Damages 17 — instructions The trial court's original instruction and additional response to the jury's question that it was the jury's province to determine the amount of damages and that plaintiff had the burden of proving the amount of damages sustained by the greater weight of the evidence clearly and correctly declared and explained the law on damages. 2. Trial 52.1 — adequacy of award — refusal to set aside verdict proper The trial court did not err in denying plaintiff's motion to set aside the verdict because the damages were inadequate, even though the parties stipulated that plaintiff incurred hospital and doctor bills of $8,716.79, but the jury returned a verdict of $3,215.59, since the stipulation did not state that such medical bills were incurred by plaintiff in the treatment of injuries resulting from defendant's negligence, and there was evidence of illness of a nature other than the type that defendant's negligence could have caused.

1. Landlord and Tenant 2 — sufficiency of evidence of lease Evidence presented by plaintiff would permit the jury to find a lease agreement between the parties where the evidence tended to show that plaintiff as lessee agreed to rent from one defendant individually as lessor or all defendants collectively as lessors particularly described realty for a term of one year for a monthly rental of $250. 2. Principal and Agent 6 — lease of property by one partner — proof of agency — ratification by other partners Evidence presented by plaintiff was sufficient to permit the jury to find that one defendant as agent for the other defendants and in his own capacity contracted to lease the property in question where it tended to show that the defendant land owners were engaged in business as general partners; one defendant's phone number was on the for sale sign located on the premises; he was referred to as the "leg man" or "custodian" of the property by two of the other five owners; a check made out to the defendant as agent for rent and tendered to another of the owners was accepted by him; this acceptance of rent could constitute a ratification of the defendant's actions; in his dealings with the defendant and two of the other owners, plaintiff was at no time given notice that the defendant did not have the power he claimed to have to deal with the property; no one objected to plaintiff's going into possession and making major renovations; and the defendant's statements in front of other people seemed to indicate that he could have made a lease for one year, though he was not the fee owner. 3. Evidence 33 — evidence excluded as hearsay — error The trial court erred in excluding on the ground of hearsay testimony by a witness that one defendant had told her that he had bought the real property in question from the partners, the other defendants, since such testimony was admissible to corroborate plaintiff's testimony that the same defendant had told him that he was in control of the property which plaintiff attempted to rent.

1. Deeds 9 — no deed of gift A deed was not a deed of gift and void because not recorded within two years as required by G.S. <cross_reference>47-26</cross_reference> since the deed recited consideration and the grantee's payment of a debt obligation to the grantor constituted consideration.<page_number>Page 708</page_number> 2. Equity 1.1; Trusts 13.5 — unclean hands — acts toward third parties In an action to have the court declare that defendants hold an interest in land conveyed to them by the female plaintiff in trust for plaintiffs, the plaintiffs were not barred from equitable relief by the "unclean hands" doctrine on the ground that the purpose of a conveyance of the land from the male plaintiff to the female plaintiff was to defraud creditors, since the third party creditors were not involved in the dispute between plaintiffs and defendants, and whatever interest defendants have was derived from this same allegedly unclean act. 3. Trusts 13.2 — oral agreement to hold land in trust A conveyance of land upon an oral agreement by the grantees to hold the land until a third party paid a debt owed to the grantor and then to convey the land to the third party did not constitute an oral contract to convey land in violation of the statute of frauds, G.S. <cross_reference>22-2</cross_reference>, but constituted a valid oral trust.

Criminal Law 155.1 — failure to file record on appeal in apt time Appeal is dismissed for failure of appellants to file the record on appeal within 150 days after giving notice of appeal as required by App. R. 12 (a).

1. Criminal Law 34.4, 86.2 — prior convictions of drunk driving — stipulation — cross-examination for impeachment proper In a prosecution for driving under the influence, third offense, the trial court did not err in allowing the State to cross-examine defendant concerning his prior convictions of driving under the influence, though defendant had stipulated for the purpose of trial that he had been so previously convicted, since the evidence sought by defendant's cross-examination was for impeachment purposes and was therefore competent. 2. Criminal Law 7 — entrapment — insufficiency of evidence In a prosecution for driving under the influence, third offense, evidence was insufficient to support defendant's contention that he was entrapped.