Plymouth Pallet Co., Inc. v. Wood , 51 N.C. App. 702 ( 1981 )

277 S.E.2d 462 (1981)

PLYMOUTH PALLET COMPANY, INCORPORATED
v.
Iris Davis WOOD (a/k/a Iris Wood Sutton).

No. 806SC898.

Court of Appeals of North Carolina.

May 5, 1981.

Allsbrook, Benton, Knott, Cranford & Whitaker by Thomas I. Benton, Roanoke Rapids, for plaintiff-appellee.

Tharrington, Smith & Hargrove by Wade M. Smith and Douglas E. Kingsbery, Raleigh, for defendant-appellant.

ARNOLD, Judge.

Defendant's only assignment of error is that the trial court erred in refusing to explain the law of gift to the jury and to submit that issue to them with appropriate instructions.

When charging the jury in a civil case, it is the duty of the trial court to explain the law and to apply it to the evidence on the substantial issues of the action. G.S. 1A-1, Rule 51; Cockrell v. Cromartie Transport Co., 295 N.C. 444, 245 S.E.2d 497 (1978). When a party contends that certain acts constitute a defense against another, the trial court must submit the issue to the jury with appropriate instructions if there is evidence which, when viewed in the light most favorable to the proponent, will support a reasonable inference of each essential element of the defense asserted. See Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977).

The substance of plaintiff's action is that defendant converted certain items of personal property belonging to plaintiff and refused to pay rent that was owed to plaintiff and past due. The only defense offered by defendant was that these items were gifts made to her by Mr. Harrison, plaintiff's chief executive officer and controlling stockholder. The essential elements of a gift inter vivos are: (1) the intent by the donor to give the donee the property in question so as to divest himself immediately of all right, title and control therein; and (2) the delivery, actual or constructive, of the property to the donee. 6 Strong's N.C. Index 3d, Gifts § 1 (1977).

It is apparent from a review of the record that the evidence, when viewed in the light most favorable to the defendant, will support a reasonable inference of the essential elements of the defense of gift. Mr. Harrison testified that he loved the defendant, that she had travelled with him and slept with him on a number of occasions, and that he wanted to marry her. He also testified that he controlled the plaintiff corporation, that either he paid for the items by personal check and was reimbursed by the company, or defendant purchased them and was reimbursed by him, and that the title and registration of the 1977 Oldsmobile were put in the name of the defendant. This evidence is sufficient to require the trial court to declare and explain the law of gift and submit the issue to the jury. Failure to do so was prejudicial error.

This action is remanded for a new trial. New trial.

HEDRICK and WEBB, JJ., concur.