Brooks v. McCorkle

• Decision Date: 05 March 1985
• Docket Number: No. 69067,69067
• Citation: 329 S.E.2d 214,174 Ga.App. 132
• Parties: , 41 UCC Rep.Serv. 857 BROOKS v. McCORKLE.
• Court: Georgia Court of Appeals

Page 214

329 S.E.2d 214

174 Ga.App. 132, 41 UCC Rep.Serv. 857

BROOKS v. McCORKLE.

No. 69067.

Court of Appeals of Georgia.

March 5, 1985.

Rehearing Denied March 25, 1985.

Rehearing Denied

William S. Stone, Blakely, for appellant.

Adie N. Durden, Jr., Charles W. Hill, Albany, for appellee.

BEASLEY, Judge.

Defendant-appellant Brooks appeals from the grant of summary judgment to plaintiff-appellee Sandra McCorkle in an action to recover on a promissory note.

Sandra McCorkle is the wife of Dan McCorkle. Dan McCorkle and Brooks were apparently jointly engaged in house building and each owned fifty percent of the stock in a corporation they formed. Dan McCorkle agreed to sell his stock to Brooks for $16,500 and Brooks executed a promissory note for that amount, payable, at Dan McCorkle's request, to his wife, Sandra McCorkle. The note became due and after demand was made, Sandra commenced this action on the note. Brooks' answer admitted the execution of the note but denied that he was indebted to Sandra; alleged that Dan McCorkle was the real party in interest, not Sandra who held the note as trustee for Dan; and asserted that the note was void for lack of consideration and subject to certain set-offs of debts owed Brooks by Dan which were alleged in a counterclaim. Brooks and Sandra McCorkle both gave depositions, with Brooks' testimony supporting his allegations. Sandra testified that she was not involved in Dan's dealings with Brooks, that her husband had the note made payable to her in case something happened to him, and that it was her note as it was in her name. The trial court granted Sandra's motion for summary judgment and denied Brooks' motion to join Dan as a necessary party. On appeal Brooks asserts the trial court erred because Dan, not Sandra, was the real party in interest. Held:

There is no merit in appellant's assertion.

" 'With the admission by the defendant of his execution of the note to the plaintiff, the plaintiff had a prima facie right to the judgment sought and the defendant then had the burden of establishing any claimed defense to the action. Code Ann. § 109A-3-307(2, 3) [now OCGA § 11-3-307]. As between the immediate parties to a note, it may be shown that its terms were modified or affected by other written agreement executed as a part of the same transaction. Code Ann. § 109A-3-119 [now OCGA § 11-3-119]. The defendant offered no such written agreements.' 'Under the statutory and case law cited above and the facts existing here, the defendants were required to plead and establish an affirmative defense to the notes admittedly executed. This they failed to do, and the plaintiff was entitled to a judgment on the pleadings at this stage.' Freezamatic Corp. v. Brigadier etc. Corp., 125 Ga.App. 767, 768, 189 S.E.2d 108 (1972).

"The promissory note is an unconditional contract of the defendants to pay the plaintiff according to the tenor of the instrument. [Cit.] Because the note contains an unconditional promise, the contract is complete as it was written; parol evidence may not be used to inject conditions on the obligation which are not apparent from the face of the note. [Cit.] ... [A]ppellants contend that the note was part of a larger contract which the...