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Property Shop Inc. v. Mountain City Investment Co.

Filed: April 6, 1982.


Appeal by defendant from Ferrell, Judge. Judgment entered 22 January 1981 in Superior Court, Buncombe County. Heard in the Court of Appeals 12 February 1982.

Clark, Judge. Judges Arnold and Whichard concur.


Defendant first argues that the court erred in excluding portions of Bhagu Patel's testimony. Patel was allowed to testify that he learned of the Downtowner in a conversation with his cousin, Sombahai Patel, who lived in High Point. The court excluded Patel's testimony that his cousin said the property was nice and the reasons his cousin did not want to buy the property himself. We do not believe that the excluded statements were material or that excluding the testimony was prejudicial to defendant. Hege v. Sellers, 241 N.C. 240, 84 S.E.2d 892 (1954). We find no merit to this exception and overrule it.

Likewise, we find no merit in defendant's next argument that the trial court erred in compelling defendant to offer into evidence certain portions of the Bhagu Patel deposition. Defendant offered portions of the deposition concerning how Patel learned of the Downtowner's availability, his trip to Asheville, his meeting in Waynesville with Prevost, and his subsequent negotiations to purchase the motel. Upon plaintiff's motion, the court required defendant

to offer certain additional testimony relevant to that already in evidence and which concerned how Patel became acquainted with Frank Dostal and details of their arrangements to go to Asheville together to look at several motels. We think the court properly required defendant to introduce these portions of the deposition pursuant to G.S. 1A-1, Rule 32(a)(5), which reads as follows:

"If only part of a deposition is offered in evidence by a party, an adverse party may require him to introduce any other part which is relevant to the part introduced, and any party may introduce any other parts."

We find that the additional testimony was relevant to portions of the deposition defendant had previously introduced and therefore overrule this exception.

Defendant argues that the trial court erred in overruling its objection to the jury argument by plaintiff's counsel in which he stated that Bhagu Patel might have to pay any bill in the case. G.S. 84-14 states that "In jury trials, the whole case as well of law as of fact may be argued to the jury." The general rule is that counsel may argue all the evidence to the jury, as well as any reasonable inferences to be drawn from it. Crutcher v. Noel, 284 N.C. 568, 201 S.E.2d 855, reh. denied, 285 N.C. 597 (1974). In the case sub judice, the offer to purchase which was introduced into evidence stated that Buyer (Bhagu Patel) was not represented by a realtor and that he would "warrant and defend the Seller against any of the said types of fees or commissions." Also, Ellen Goldstein was allowed to testify without objection that Bernard Goldstein told her to let the sale go through because Patel would probably have to pay the commission due to the indemnity clause. We hold, therefore, that the trial court properly overruled defendant's objection since plaintiff's counsel was arguing facts which had been admitted into evidence without objection. We overrule this assignment of error.

Defendant next assigns as error the failure of the trial court to give special instructions it had requested concerning the duty of a real estate broker to inform the property owner that it is the broker's prospect with whom the owner is negotiating. The duty of the trial judge is to declare the law arising on the evidence and to explain the application of the law to that evidence. G.S. 1A-1,

Rule 51(a). When a party tenders a written request for a specific instruction which is correct and supported by evidence, the failure of the court to give the instruction in substance is error. Faeber v. E.C.T. Corp., 16 N.C. App. 429, 192 S.E.2d 1 (1972).

We believe that the trial court properly instructed the jury on the law applicable to this issue. We do not agree with defendant that the judge should have given instructions on the duty of a broker to inform a seller that a prospective purchaser was procured by the broker's efforts. Rather, the issue before the jury was whether the seller knew or should have known that the ...

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